Overview of Lewd or Lascivious Acts with a Minor — California Penal Code 288 PC


PC 288(a) – Lewd or Lascivious Acts with a Child under 14 Years of Age

California Penal Code 288 states that it is illegal for you to engage in any lewd or lascivious act with a minor. Lewd or lascivious acts refer to acts that are indecent or sexual in an offensive way. A charge for lewd and lascivious acts with a minor is also commonly referred to as child molestation.

Child molestation is a serious offense and can have a severe impact on your life, both personally and professionally. If you are facing charges for lewd or lascivious acts with a minor, the attorneys at Wallin & Klarich can help you successfully defend yourself against these serious allegations.

Prosecution for Lewd and Lascivious Acts with a Minor

In order for you to be convicted for committing a lewd or lascivious act upon a minor under 14 years of age, the prosecution must prove the following:

  1. You willfully and lewdly touched any part of a child’s body, or you willfully caused the child to touch your body, or the body of someone else;
  2. You committed the act with the intent of arousing, appealing to, or gratifying your lust, passions, or sexual desires, or the lust, passions, or sexual desires of the child; and
  3. The child was under the age of 14 at the time of the act.

 

You should not face alone the accusations of lewd or lascivious acts with a child in California. Our child molestation attorneys can help you immediately.

You do not have to face these accusations alone. Call us today.


 

PC 288(b) – Lewd or Lascivious Acts with a Minor Through the use of Force, Violence, Duress, or Fear

If you are convicted of using force, violence, duress, or fear to commit the lewd or lascivious act you can be sentenced pursuant to California Penal Code section 288(b). If you are found to have used force, violence, duress or fear to commit the act you face a harsher sentence than you would if you had not committed the act with such tactics.

PC 288(c) – Lewd or Lascivious Acts with a Child who is 14 or 15 years old

In addition, according the California Penal Code 288(c) you can be charged with child molestation if the minor was 14 or 15 years old, so long as you were 10 years older than the minor at the time of the touching.

According to California Penal Code 288.5 you can also be charged with continuous sexual abuse of a child if you engaged in three or more acts of child molestation within a three month period of time. In order to charge you with continuous sexual abuse of a child the prosecution must also show that you lived in the same home or had recurring access to the minor and that the minor was under the age of 14.

Defenses to Lewd or Lascivious Conduct with a Minor

If you have been charged with committing a lewd or lascivious act upon a minor you may be able to raise many strong defenses in order to win your case. The following is a list of possible defenses that your experienced defense attorney can help you present depending on the circumstances of your case:

  1. You did not touch the alleged victim or ask the alleged victim to touch you (In effect, the victim is either lying or confused)
  2. The touching was accidental
  3. The  minor was 14 or 15 years old and you were not 10 years older than the minor at the time of the offense
  4. You did not use force or fear to commit the act
  5. You did not intend to commit a lewd or lascivious act upon the minor
  6. You did not touch the minor with the specific intent to arouse yourself or the minor

 

Charged with Lewd or Lascivious Acts with a Child under 14 per California PC 288(a)? Speak to our child molestation lawyers today.

If you are being accused of lewd acts with a minor, speak to us today.


 

Sentencing and Punishment for Lewd and Lascivious Acts with a Minor

The sentence you face for a violation of California Penal Code 288 depends on the circumstances of your case.

Punishment for PC 288(a) – Lewd or Lascivious Acts with a Child under 14

If you are charged pursuant to California Penal Code 288(a) for lewd or lascivious acts on a child under the age of 14, you face the possibility of imprisonment in the state prison for up to eight years and a $10,000 fine.

Punishment for PC 288(b) – Lewd or Lascivious Acts with a Child using Force, Violence, Duress, or Fear

If you are charged with using force, violence, duress or fear to commit the lewd or lascivious act, under California Penal Code 288(b), you can face up to ten years in prison and a $10,000 fine. If you are convicted of a violation of California Penal Code 288(b) the court must sentence you to prison as you are not eligible for probation.

Punishment for PC 288(c) – Lewd or Lascivious Acts with a Child 14 or 15 years old

If the minor was 14 or 15 at the time of the offense, and you were ten years older than the minor, you can be charged with either a misdemeanor or felony. A misdemeanor carries a sentence of imprisonment in the county jail for up to one year in county jail, while a felony conviction carries a sentence of up to three years in the state prison.

Punishment for PC 288.5 – Continuous Sexual Abuse of a Minor

If you are charged with continuous sexual abuse of a child, pursuant to California Penal Code 288.5, you can be sentenced to six, twelve, or sixteen years in state prison.

Even though the sentence varies depending on what offense under California Penal Code 288 you are charged with, any conviction under California Penal Code 288 will require that you register as sex offender for life. Please refer to our California Penal Code 290 page for more information on what impact having to register as a sex offender pursuant to California Penal Code section 290 will have on your life.

Lewd and Lascivious Acts with a Minor FAQs

To help you better understand the various aspects of California Penal Code section 288, our attorneys at Wallin & Klarich have provided answers to some of the most commonly asked questions in our FAQ section. There, you can find answers to questions like:

  1. Can I be charged with multiple offenses under California Penal Code section 288 if the touching of the minor only happened once?
  2. What if I did not know how old the minor was?
  3. What if the minor consented to the act in question?
  4. If I am convicted of using force to commit lewd acts upon a minor under California Penal Code section 288(b) can I also be charged with battery?
  5. If I am a minor under the age of 14, can I still be convicted of violating California Penal Code section 288(a)?

Want help with your case? Call us for a free phone consultation 877-4-NO-JAIL


 

Court Decisions Relating to Lewd and Lascivious Acts with a Minor (CPC 288) Can Impact the Result of Your Case

The California Supreme Court and the California Courts of Appeals continually issue legal rulings that explain the different aspects of the law related to child molestation under California Penal Code section 288. If you are accused of child molestation it is important that you are aware of these important court decisions. Below is a list of topics related to PC 288 that the courts of appeals have issued rulings on. You will want to make certain that your criminal defense lawyer is familiar with these court rulings.

(1)    Validity of PC 288

(2)    Due Process and the Validity of PC 288

(3)    Equal Protection and the Validity of PC 288

(4)    Ex Post Facto Laws and Retroactive Application of PC 288

(5)    Construction and Application of PC 288

(6)    Construction of PC 288 and Federal Law

(7)    PC 288’s Construction with Other Laws (i.e. possible enhancements)

(8)    Legislative Intent of PC 288

(9)    Child Abuse Reports and PC 288

(10) Aliens and Immigrants and PC 288 Punishment

(11) Amending or Changing Charges During PC 288 Trial

(12) Challenging Effective Assistance of Legal Counsel in PC 288 Cases

(13) General Elements of PC 288 Offense

(14) Definition of “any person” under PC 288

(15) “Lewd and Lascivious” under PC 288

(16) The “intent” Requirement under PC 288

(17) Using Evidence of Prior Sex Offenses to Show Intent under PC 288

(18) Age of the Defendant as a Factor for Showing Intent under PC 288

(19) The Need for Sufficient Evidence to Show Intent for PC 288 Conviction

(20) What type of touching constitutes “substantial sexual conduct” under PC 288?

(21) Definition of “touching” under PC 288>

(22) What constitutes sufficient evidence of “touching” under PC 288?

(23) The Definition of “lust, passion or sexual desires” under PC 288

(24) Age of the Victim under PC 288

(25) Jury Instructions Related to Age of the Victim

(26) Age of the Defendant Charged with PC 288 Offense

(27) The Definition of “force” under PC 288

(28) The Use of Drugs and “force” under PC 288

(29) The Need for Sufficient Evidence to Show Force under PC 288

(30) The Definition of “duress” under PC 288

(31) Consent is Not a Defense to PC 288

(32) Penetration and Emission When Committing a PC 288 Offense

(33) The Importance of the Date of Occurrence of the lewd or lascivious acts under PC 288

(34) The Importance of the Place of Occurrence under PC 288

(35) When Physical Presence Not Necessary to Commit a PC 288 Offense

(36) Aiding and Abetting a PC 288 Offense

(37) Accomplices under PC 288

(38) Conspiracy to Commit a PC 288 Offense

(39) Sentencing and Punishment for Committing Multiple Acts that Violate PC 288

(40) Offenses Included within PC 288

(41) Sodomy and PC 288

(42) Contributing to the Delinquency of a Minor as an Offense included within PC 288

(43) Criminal Solicitation and PC 288

(44) Continuous Sexual Abuse of a Child and its Relationship to PC 288

(45) Oral Copulation as both a Primary and Lesser offense of PC 288

(46) Unlawful Sexual Intercourse as both a Primary and Lesser Offense of PC 288

(47) Entrapment and Sting Operations in PC 288 Cases

(48) Mistake of Fact as a Defense in PC 288 Cases

(49) Intoxication in PC 288 Cases

(50) Statute of Limitations in PC 288 Cases

(51) Charging of a Specific Offense under PC 288

(52) Plea Agreements in PC 288 Cases

(53) Jury Bias in PC 288 Cases

(54) Questions of Fact for the Jury

(55) Jury Instructions

(56) Jury Deliberations in PC 288 Cases

(57) Sentencing and Punishment for PC 288

(58) Aggravating Factors Considered in Sentencing under PC 288

(59) Enhancements of Penalties under PC 288

(60) Sex Offender Registration for PC 288 Offense

(61) Probation Requirements for PC 288

(62) Restitution as a Punishment for PC 288 Offense

(63) Sentencing and Punishment for Separate but Included Offenses Under PC 288

(64) Sentence and Punishment for Mentally Disordered Sex Offenders who Violate PC 288

(65) Procedure Followed by the Court for Sentencing and Punishment of  PC 288 Offense

(66) Commitment as a Sexually Violent Predator for PC 288 Offense

(67) Certificate of Rehabilitation and Governor’s Pardon

(68) Conditions of Parole

(69) The State’s Requirement to Disclose Evidence that will be Presented at PC 288 Trial

(70) Admissibility of Evidence in PC 288 Case

(71) How much evidence is enough to convict an individual under PC 288?

(72) Evidence of the Age of the Victim

(73) Evidence of the Age of the Defendant

(74) Hearsay Evidence in PC 288 Cases

(75) The Constitutional Right for the Defendant to Confront Witnesses under the Confrontation Clause

(76) Competency of Witnesses in PC 288 Cases

(77) Witness Coaching in PC 288 Cases

(78) Rape Experts in PC 288 Cases

(79) Victim Testimony

(80) Admissions by the Defendant

(81) Repetitive Witness Testimony and Evidence in PC 288 Cases

(82) When statements made by victim after the alleged incident can be let in as evidence against the defendant

(83) Immediate outcry by the victim can be used as evidence against the defendant

(84) Delayed Report of PC 288 Offense

(85) Victim’s Failure to Report PC 288 Offense

(86) Can evidence of other previous sex offenses be used in a PC 288 case?

(87) Corroboration or Support for Victim’s Complaint against the Defendant

(88) Disposition of the Defendant can be used as evidence in PC 288 case

(89) Evidence of other prior sex offenses Can be Let in if it is shown that all the sex offenses follow a common design or plan

(90) Evidence of the Victim’s Prior Allegations of Molestation

(91) Evidence of Injury to the Victim

(92) Evidence of the Victim’s Emotional or Mental State

(93) Evidence of Physical Examinations of the Victim

(94) Blood Test Evidence

(95) Admitting the Child’s Clothing as Evidence in a PC 288 Case

(96) Photographic Evidence in PC 288 Cases

(97) Appellate Review of Defendant’s Conviction under PC 288

(98) Appellate Review of Prosecutor’s Conduct in Defendant’s Trial

(99) Appellate Review of whether the Defendant Received Effective Assistance from his/her Legal Counsel

(100) Habeas Corpus and PC 288

Call Wallin & Klarich

If you or a family member is facing charges under California Penal Code section 288 Wallin & Klarich is here to help. Charges for lewd or lascivious acts with a minor can have life altering consequences. The attorneys at Wallin & Klarich, with over 30 years of experience, can help you successfully defend yourself against charges for lewd and lascivious acts upon a minor.

Our offices are located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina, Victorville, Torrance, and Sherman Oaks. Call Wallin & Klarich today at 1-877-4-NO-JAIL (1-877-466-5245).We will get through this together.

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California Case Law Regarding Penal Code 288

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1. Validity of PC 288

Statute criminalizing lewd or lascivious acts performed on minors with specific intent of arousing, appealing to, or gratifying lust, passions, or sexual desires of child was not unconstitutionally vague on its face or as applied to defendant; statute required conjunction of specific type of act and well-defined mental state.  Shumate v. Newland, N.D.Cal.1999, 75 F.Supp.2d 1076.

A double extension of the limitations period, adding total of three years to limitation period for felony child molestation prosecution did not per se violate either due process or cruel and/or unusual punishment provisions.  People v. Smith (App. 5 Dist. 1985) 217 Cal.Rptr. 634, 171 Cal.App.3d 997.

This section was not unconstitutionally vague, notwithstanding use therein of words “lewdly”, “lewd” and “lascivious”.  People v. Loignon (App. 1958) 160 Cal.App.2d 412, 325 P.2d 541.

This section forbidding committing lewd or lascivious acts on or with body of minor was constitutional.  People v. Maine (App. 3 Dist. 1928) 93 Cal.App. 141, 269 P. 194.

That this section, formerly relating to offenses not constituting other crimes provided for in part 2 of this Code (amended in 1933 to read part 1), plainly meaning part 1, was not such an uncertainty as to render it invalid.  People v. Troutman (1921) 187 Cal. 313, 201 P. 928.

This section prohibiting any lewd or lascivious act upon or with a child under 14, etc., entitled, as enacted by Stats.1901, p. 630, “An act to amend the Penal Code by adding a new section thereto to be numbered,” etc., “relating to crimes against children,” was not violative of Const. Art. 4, § 24, (repealed;  see, now, Const. Art. 4, § 9) as explicitly negativing and contradicting the subject expressed in the title;  it not being misleading or calculated to deceive;  nor did it involve special legislation, within the meaning and contemplation of Const. Art. 4, § 25, subd. 2, (repealed;  see, now, Const. Art. 4, § 16) applying as it does to all children under 14 years of age and to all of a class;  nor was it rendered incurably uncertain, vague, and unintelligible, in that it could not be ascertained, what lewd and lascivious acts were prohibited, because the section, by clerical error or otherwise, referred to Part 2 (amended in 1933 to read part 1), relating solely to criminal procedure, instead of Part 1.  People v. Camp (App. 1919) 42 Cal.App. 411, 183 P. 845.

This section, providing, that any person who shall willfully and lewdly commit any lewd or lascivious act, other than the acts constituting other crimes provided for in part “II” of the Code, etc. (amended in 1933 to read part 1), was not rendered unintelligible merely because the statement of the acts constituting other crimes is found in part “I” and not in part “II.”  People v. Bradford (App. 1905) 1 Cal.App. 41, 81 P. 712.

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2. Due Process and Validity of PC 288

Petitioner’s conviction under California law for soliciting lewd and lascivious conduct with 14-year-old did not violate due process on grounds that he was convicted of “nonexistent crime” which was retroactively applied to him; statute prohibiting solicitation of certain acts was general reference statute intended to incorporate subsequent amendments to referenced statutes, such that amendment to referenced statute originally prohibiting lewd acts on children under 14 to include 14 year olds applied to petitioner’s conduct.  Morgan v. Robinson, C.D.Cal.2001, 156 F.Supp.2d 1133.

Petitioner who was convicted of soliciting lewd and lascivious conduct with a 14-year-old received fair warning that his conduct was illegal under California law, so as to satisfy due process; a reasonable person of ordinary intelligence would not find it “unexpected” or “outlandish” that the solicitation of lewd conduct with a 14-year-old girl would be illegal.  Morgan v. Robinson, C.D.Cal.2001, 156 F.Supp.2d 1133.

Petitioner was sufficiently informed of charges against him, in compliance with due process, so he could adequately prepare a defense against charge of soliciting lewd and lascivious conduct with 14-year-old, despite fact that 14-year-old was “fictitious person,” where information charged petitioner with violating two statutes defining elements of crime, and undercover police officer posing as escort service operator was only witness at preliminary hearing and testified about his conversation with petitioner regarding hiring of 14-year-old escort.  Morgan v. Robinson, C.D.Cal.2001, 156 F.Supp.2d 1133.

Police conduct in advertising escorts and posing as escort service operator, which led to defendant’s conviction for solicitation of lewd and lascivious conduct with 14-year-old, was not so shocking and outrageous as to violate due process of law.  Morgan v. Robinson, C.D.Cal.2001, 156 F.Supp.2d 1133.

Due process violation in relying on victim’s hearsay statements, to prove details of underlying lewd act on child conviction, was not harmless in Sexually Violent Predators Act (SVPA) proceeding, even though People presented evidence of two other qualifying convictions; defendant contested one of other convictions, and it was likely that victim’s hearsay statements, which described most egregious behavior presented during trial, contributed to the jury’s overall determination that defendant was sexually violent predator (SVP).  People v. Carlin (App. 6 Dist. 2007) 58 Cal.Rptr.3d 495, 150 Cal.App.4th 322.

Statutory amendment that eliminated possibility for expunging conviction for child molesting did not violate due process rights of defendant who committed that offense before amendment took effect; defendant had fair warning of what statute prohibited and of what punishment would be, and ban on expungement was not punishment.  People v. Acuna (App. 2 Dist. 2000) 92 Cal.Rptr.2d 224, 77 Cal.App.4th 1056.

Admission of pretrial interviews of minor sexual assault victim was not so extremely unfair that its admission violated fundamental conceptions of justice under due process clause, even though defendant’s expert asserted that interviewers used inappropriate techniques; both expert and victim testified at trial and were subject to cross-examination.  Garcia v. Garcia, C.A.9 (Cal.)2002, 45 Fed.Appx. 768, 2002 WL 2022097, Unreported.

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3. Equal Protection and Validity of PC 288

Sex offender convicted of lewd acts on a child under the age of 14 was not similarly situated to any offender not subject to mandatory lifetime sex offender registration, and thus such registration did not violate equal protection, absent a showing of discriminatory prosecution, since there was no sexual offense involving only victims less than 14 years of age for which conviction did not require mandatory registration.  People v. Tuck (App. 1 Dist. 2012) 139 Cal.Rptr.3d 407, 204 Cal.App.4th 724.

Penal Code’s disparate treatment of prison inmates who commit acts of oral copulation with any consenting adults and prison guards who commit acts of oral copulation with consenting adults who are prison inmates, in subjecting only the former group to mandatory lifetime sex offender registration, is not supported by a rational basis, and thus violates the federal and state equal protection clauses.  People v. Ruffin (App. 5 Dist. 2011) 133 Cal.Rptr.3d 27, 200 Cal.App.4th 669, review denied.

Prison inmates who commit acts of oral copulation with any consenting adults are similarly situated under the equal protection clause with prison guards who commit acts of oral copulation with consenting adults who are prison inmates, for purposes of mandatory lifetime sex offender registration upon conviction.  People v. Ruffin (App. 5 Dist. 2011) 133 Cal.Rptr.3d 27, 200 Cal.App.4th 669, review denied.

Mandatory sex offender registration for persons convicted under the statute prohibiting lewd or lascivious conduct with a minor under the age of 14 bears a rational relationship to a legitimate state purpose, and thus does not violate equal protection, in that the offense is limited to victims under the age of 14 years, who tend to be more vulnerable to being preyed upon by sexual predators than older children, and the offense requires a finding that, when the perpetrator committed the lewd act, he or she possessed specific intent to arouse or gratify the sexual desires of either the perpetrator or the victim.  People v. Singh (App. 4 Dist. 2011) 129 Cal.Rptr.3d 461, 198 Cal.App.4th 364, review denied.

Mandatory sex offender registration for defendant convicted of attempted lewd act on a child under 14 years old and lewd exposure did not violate equal protection clause of the state or federal Constitution, even though sex offender registration was discretionary for those convicted of unlawful intercourse with a minor; mandatory sex offender registration was rationally related to a legitimate state purpose since, unlike unlawful intercourse with a minor, offense of attempted lewd acts on a child under 14 years old was limited to victims under the age of 14 years, who tended to be more vulnerable to being preyed upon by sexual predators than older children, and required a finding that, when the perpetrator committed the lewd act, he possessed specific intent to arouse or gratify the sexual desires of either the perpetrator or the victim.  People v. Alvarado (App. 4 Dist. 2010) 113 Cal.Rptr.3d 648, 187 Cal.App.4th 72, as modified, review denied.

Mandatory requirement of lifetime sex offender registration did not violate equal protection right of defendant convicted of lewd or lascivious act on a child of 14 or 15 years by a person at least 10 years older than that child, since defendant was not similarly situated to those convicted of voluntary copulation of a 16- or 17-year-old victim or with any other group of offenders not subject to mandatory registration.  People v. Anderson (App. 6 Dist. 2008) 85 Cal.Rptr.3d 262, 168 Cal.App.4th 135, review denied, application for writ of habeas corpus held in abeyance 2010 WL 5135914.

Mandatory requirement of lifetime sex offender registration violated equal protection right of 22-year-old defendant convicted of felony oral copulation with 14-year-old minor, inasmuch as a person convicted of unlawful sexual intercourse with a victim of same age, and less than ten years older than victim, would not be subject to mandatory registration; no rational basis existed for statutory distinction between these offenders.  People v. Hernandez (App. 2 Dist. 2008) 83 Cal.Rptr.3d 29, 166 Cal.App.4th 641.

Statute imposing mandatory lifetime registration as sex offender for oral copulation with person under age 16 did not violate right to equal protection as applied to defendant who was more than ten years older than victim; lifetime registration would also have been mandatory if defendant had engaged in sexual intercourse with victim of same age.  People v. Manchel (App. 2 Dist. 2008) 78 Cal.Rptr.3d 194, 163 Cal.App.4th 1108, rehearing denied, review denied.

Petitioner who sought to have juvenile record sealed lacked standing to assert that statute prohibiting sealing of juvenile wardship record for lewd and lascivious act upon child under age 14, committed when he was 15 years old, violated equal protection; petitioner was not treated differently than any adult who committed same offense and whose record could not be expunged.  People v. Superior Court (App. 4 Dist. 2002) 128 Cal.Rptr.2d 794, 104 Cal.App.4th 915, review denied.

Availability of expungement for convictions of murder, mayhem, and rape, but not for convictions of child molestation, did not violate equal protection rights of persons convicted of latter offense; high rate of recidivism for child molesters and society’s particular interest in protecting children justified treating child molesters differently from those convicted of other heinous crimes including other types of sex offenses.  People v. Acuna (App. 2 Dist. 2000) 92 Cal.Rptr.2d 224, 77 Cal.App.4th 1056.

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4. Ex Post Facto Laws and Retroactive Application of PC 288

Imposition of $500 fine on defendant following six no contest pleas to lewd and lascivious conduct was an improper ex post facto penalty, as, at the time of defendant’s crimes, the relevant statute provided for a $300 fine.  People v. Voit (App. 6 Dist. 2011) 133 Cal.Rptr.3d 431, 200 Cal.App.4th 1353, review denied.

Imposition of a One Strike Law term of 15 years to life against defendant for commission of a forcible lewd act against his child violated his constitutional right against ex post facto laws, where the acts were alleged to have occurred during a four-year period, and there was no proof beyond a reasonable doubt that defendant committed the crime before the effective date of the One Strike Law.  People v. Riskin (App. 5 Dist. 2006) 49 Cal.Rptr.3d 287, 143 Cal.App.4th 234, review denied, certiorari denied 128 S.Ct. 2942, 554 U.S. 907, 171 L.Ed.2d 871.

Statutory amendment that eliminated the possibility for expungement of conviction for child molestation did not increase “punishment” so as to violate Ex Post Facto Clause if applied to defendants who committed that offense prior to amendment’s effective date.  People v. Acuna (App. 2 Dist. 2000) 92 Cal.Rptr.2d 224, 77 Cal.App.4th 1056.

Application of statutory amendment banning expungement of child molestation convictions to petition filed after amendment took effect was not retroactive, even though offense in question occurred prior to amendment’s effective date.  People v. Acuna (App. 2 Dist. 2000) 92 Cal.Rptr.2d 224, 77 Cal.App.4th 1056.

Imposition as one of the conditions of probation of defendant, found guilty of lewd and lascivious conduct toward a child under the age of 14 years, that he not associate with any minors under the age of 18 or frequent places where such minors congregate unless in the presence of responsible adults might be an interference to a degree with defendant’s freedom of movement and freedom of choice as to places he goes and associates he keeps, but imposition of such restriction was not unconstitutional.  People v. Mills (App. 4 Dist. 1978) 146 Cal.Rptr. 411, 81 Cal.App.3d 171.

Under the issue preclusion component of double jeopardy, retrial on four counts of committing a forcible lewd act upon a child under the age of 14, on which counts the jury had hung and a mistrial had been declared, was barred, after jury had acquitted defendant of a fifth count of continuous sexual abuse of a child under the age of 14, which had not been presented in the alternative; commission of a lewd or lascivious act, which was necessary to convict defendant of forcible lewd act on a child, was an ultimate fact for continuous sexual abuse of a child, acquittal meant that jury found defendant committed neither a lewd act nor substantial sexual conduct against alleged victim during common date range for the five counts, and acquitted count included broader range of acts than the other four counts.  Brown v. Superior Court (App. 2 Dist. 2010) 114 Cal.Rptr.3d 804, 187 Cal.App.4th 1511.

In light of the unique circumstances, i.e., prosecutor’s strategic decisions to plead in the information, using generic statutory language, four counts of committing a forcible lewd act upon a child under the age of 14, to plead a fifth count, which was not presented in the alternative, for continuous sexual abuse of a child under the age of 14, using generic statutory language and same date range as the other four counts, and to argue that the jury should either believe that all of the acts to which the alleged victim testified occurred or none of them occurred, the burden of proof with respect to whether the issue preclusion component of double jeopardy barred retrial on first four counts, after jury had acquitted defendant of fifth count but had hung as to the first four counts, for which a mistrial had been declared, shifted to the prosecutor, upon defendant’s nonfrivolous showing that he faced prosecution for an offense for which he was formerly placed in jeopardy.  Brown v. Superior Court (App. 2 Dist. 2010) 114 Cal.Rptr.3d 804, 187 Cal.App.4th 1511.

Mandatory lifetime sex offender registration for a defendant convicted of sexually penetrating a minor violates equal protection, even if the victim is under age 14, since such a defendant is similarly situated to a person convicted of unlawful sexual intercourse with a minor, who would not be subject to mandatory registration; conviction for lewd acts with child under 14 would require an additional element of intent not required for sexually penetrating a minor or unlawful sexual intercourse with minor.  People v. Ranscht (App. 4 Dist. 2009) 93 Cal.Rptr.3d 800, 173 Cal.App.4th 1369.

Imposition of four year upper term for attempted lewd act on a child under 14 was based on the multiple victim circumstance and thus did not violate defendant’s right to have a jury find facts exposing him to the upper term sentence; defendant had been convicted of various molestation and attempted molestation charges involving other victims, and defendant’s culpability was not lessened by the absence of actual harm or injury in connection with the attempts.  People v. Crabtree (App. 2 Dist. 2009) 88 Cal.Rptr.3d 41, 169 Cal.App.4th 1293, review denied, habeas corpus denied 2012 WL 2261116.

Statute barring punishment of same act under more than one provision did not prohibit trial court from calculating under habitual sex offender law the measure of punishment for current offense of lewd conduct with a child under 14, tripling that term under Three Strikes law based on two prior strike convictions, and imposing 10-year consecutive term for the two prior serious felony convictions; application of habitual sex offender law and Three Strikes law depended on defendant’s status and did impose additional punishment for current offense.  People v. Snow (App. 4 Dist. 2003) 129 Cal.Rptr.2d 314, 105 Cal.App.4th 271, modified on denial of rehearing, review denied.

Imposition of $1,000 restitution fine on defendant convicted of committing lewd or lascivious acts upon a child under 14 years old, without considering defendant’s ability to pay, did not violate due process, where fine was not payable until defendant’s release from prison, parole board was not obligated to condition defendant’s parole upon payment of restitution fine, and defendant would suffer no further incarceration based on his inability to pay.  People v. Long (App. 5 Dist. 1985) 210 Cal.Rptr. 745, 164 Cal.App.3d 820.

Punishment for commission of lewd or lascivious acts on body of a child under age of 14 may constitutionally exceed that for a second conviction of indecent exposure.  People v. Mack (App. 2 Dist. 1975) 125 Cal.Rptr. 188, 52 Cal.App.3d 680.

Conviction and sentence of defendant, who was afforded all rights and considerations afforded any other individual charged and convicted of same offense, of lewd and lascivious act against child under age of 14, which is only crime which deals with lewd and lascivious acts committed by adult upon minor, did not deny defendant due process or equal protection despite fact that other types of crime may have lesser sentences.  People v. Kingston (App. 2 Dist. 1974) 118 Cal.Rptr. 896, 44 Cal.App.3d 629.

This section which provides for imprisonment from one year to life for any person convicted of lewd and lascivious act against child under age of 14 years is constitutional and does not provide “cruel or unusual” punishment.  People v. Kingston (App. 2 Dist. 1974) 118 Cal.Rptr. 896, 44 Cal.App.3d 629.

Penalty of imprisonment for a term of from one year to life for violation of this section is not so broad as to constitute an improper delegation of legislative or judicial authority to the executive authority.  People v. Mesa (App. 2 Dist. 1967) 59 Cal.Rptr. 607, 251 Cal.App.2d 575, certiorari denied 88 S.Ct. 807, 389 U.S. 1056, 19 L.Ed.2d 854.

This section, prohibiting any lewd or lascivious act upon or with a child under 14, did not authorize the infliction of unusual punishment, within the meaning of the inhibition of Const. Art. 1, § 6 (repealed;  see, now, Const. Art. 1, § 17, in part).  People v. Camp (App. 1919) 42 Cal.App. 411, 183 P. 845.

This section, prohibiting any lewd or lascivious act upon or with a child under 14, did not deny to persons prosecuted under its provisions the equal protection of the laws, or to deprive them of liberty without due process, contrary to U.S. Const. Amend. 14, § 1, though other sections of this Code relating to crimes against children, such as §§ 272, 273 (repealed 1937.  See Labor Code, §§ 1308, 1309), 273g, and 650 , (renumbered 650.5) made the condemned acts misdemeanors only.  People v. Camp (App. 1919) 42 Cal.App. 411, 183 P. 845.

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5. Construction and application of PC 288

California crime of lewd or lascivious act on a child under the age of 14 years constitutes “sexual abuse of a minor,” and thus an “aggravated felony” under statute listing crimes that qualify as aggravated felonies for purposes of Immigration and Nationality chapter of the United States Code, thus warranting a 16-level sentencing enhancement upon conviction for entering the United States after being deported subsequent to a conviction for that crime.  U.S. v. Baron-Medina, C.A.9 (Cal.)1999, 187 F.3d 1144, certiorari denied 121 S.Ct. 1130, 531 U.S. 1167, 148 L.Ed.2d 996.

Statute prohibiting lewd acts on a child under the age of 14 applies even if the defendant is a minor and younger than the victim.  People v. Tuck (App. 1 Dist. 2012) 139 Cal.Rptr.3d 407, 204 Cal.App.4th 724.

The statute prohibiting lewd or lascivious acts against a child prohibits all forms of sexually motivated contact with an underage child.  In re R.C. (App. 2 Dist. 2011) 126 Cal.Rptr.3d 418, 196 Cal.App.4th 741.

Unlike rape, the wrong punished by the lewd acts statute is not the violation of a child’s sexual autonomy, but of its sexual innocence.  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

A minor does not violate statutory section governing offense of lewd or lascivious conduct by engaging in lewd conduct with an adult.  People v. Herman (App. 1 Dist. 2002) 119 Cal.Rptr.2d 199, 97 Cal.App.4th 1369.

A minor may violate statutory section governing offense of lewd or lascivious conduct by engaging in the proscribed conduct against another minor.  People v. Herman (App. 1 Dist. 2002) 119 Cal.Rptr.2d 199, 97 Cal.App.4th 1369.

For purposes of charges of committing lewd acts on child under age 14, defendant’s acts in masturbating victim fell within definition of “mutual masturbation” and thus qualified for extended statute of limitations allowing a criminal complaint to be filed within one year of a person’s report that he or she, while under age of 18, was victim of child molestation.  People v. Lamb (App. 1 Dist. 1999) 90 Cal.Rptr.2d 565, 76 Cal.App.4th 664, as modified.

Criminal statute prohibiting lewd and lascivious conduct with children could not be read in such a restrictive fashion that there can be no criminal sanction until defendant has accomplished blatantly sexual act or, in cases where transaction is interrupted or child escapes, until touching has progressed to point that sexual nature of act is evident without reference to context in which it occurred.  People v. Sharp (App. 1 Dist. 1994) 36 Cal.Rptr.2d 117, 29 Cal.App.4th 1772, rehearing denied, review denied, certiorari denied 115 S.Ct. 2006, 514 U.S. 1130, 131 L.Ed.2d 1006, habeas corpus dismissed 2002 WL 202375.

This section, penalizing commission of lewd acts on male child under 14, excludes crimes against nature, and certain other sexual crimes, in view of fact that exclusion of acts constituting crimes provided for in “part 2” of Code (amended in 1933 to read part 1), had been construed as meaning “part 1.”  People v. Dant (App. 3 Dist. 1924) 68 Cal.App. 588, 229 P. 983.

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6. Construction of PC 288 and Federal Law

Provision of Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) that repealed suspension-of-deportation relief and replaced it with narrower, cancellation-of-removal relief did not apply retroactively to alien who, prior to IIRIRA’s enactment, pleaded guilty under California law to lewd or lascivious acts with a child under the age of 14, inasmuch as there was no clear statement that Congress intended retroactive application and applying IIRIRA to alien would deprive him of eligibility for discretionary waiver of deportation for which he was eligible at the time of his guilty plea.  Lopez-Castellanos v. Gonzales, C.A.92006, 437 F.3d 848.

The federal sexual abuse laws, codified at Chapter 109A of the United States Code, do not limit the class of state laws reached by the term “sexual abuse of a minor” contained in statute listing crimes that qualify as aggravated felonies for purposes of Immigration and Nationality chapter of the Code; rather, court must interpret the undefined term “sexual abuse of a minor” by employing the ordinary, contemporary, and common meaning of the words that Congress used, and then determine whether a particular state crime falls within it, and this determination must be made categorically.  U.S. v. Baron-Medina, C.A.9 (Cal.)1999, 187 F.3d 1144, certiorari denied 121 S.Ct. 1130, 531 U.S. 1167, 148 L.Ed.2d 996.

Defendant’s Sixth Amendment right to jury trial was violated by his sentence, after no contest plea, to upper term for lewd and lascivious conduct with child, even though total sentence imposed was agreed maximum sentence under defendant’s plea bargain, where aggravating circumstance upon which trial court relied, taking advantage of position of trust, was neither admitted by defendant nor established by jury verdict.  People v. French (2008) 73 Cal.Rptr.3d 605, 43 Cal.4th 36, 178 P.3d 1100, as modified.

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7. PC 288’s Construction with Other Laws (i.e. possible enhancements)

Based on petitioner’s statements suggesting that petitioner had molested or attempted to molest murder victim, prosecution had probable cause under California law to charge lewd and lascivious act special circumstance; lack of physical evidence of molestation did not eliminate the possibility of establishing the lewd and lascivious conduct.  Hovey v. Ayers, C.A.9 (Cal.)2006, 458 F.3d 892.

The offense of lewd act with a child based on generic testimony may be charged in addition to the offense of continuous sexual abuse of a child where the abuse continues beyond the three-month period required to establish continuous sexual abuse of a child.  People v. Anderson (App. 2 Dist. 2012) 144 Cal.Rptr.3d 606, 207 Cal.App.4th 1440, 208 Cal.App.4th 851, modified on denial of rehearing, review denied.

Trial court properly recognized the scope of its sentencing discretion in sentencing defendant to a full consecutive low term of three years for a forcible lewd act committed on same occasion as an aggravated sexual assault against the same child, as opposed to sentencing defendant to one-third of the middle term as provided by statute, where the court acknowledged that it had discretion to impose a full consecutive sentence for each enumerated sex crime committed during an indivisible or single transaction, and the court identified aggravating factors it relied on in finding consecutive sentencing appropriate; trial court’s reasoning demonstrated that it reasonably viewed defendant as the kind of “more serious sex offender” for which the punitive aspect of the statute authorizing full consecutive sentences was designed.  People v. Quintanilla (App. 2 Dist. 2009) 87 Cal.Rptr.3d 889, 170 Cal.App.4th 406, review denied, habeas corpus denied 2010 WL 4220568.

Defendant’s conviction for committing a lewd and lascivious act involving a child under the age of 15, who was at least 10 years younger than defendant, which was not eligible for relief under statute providing for release from penalties and disabilities resulting from conviction following completion of probation, did not prevent dismissal of defendant’s convictions in same case for sexual battery and resisting a peace officer under said statute; statute permitted dismissal of individual counts.  People v. Mgebrov (App. 1 Dist. 2008) 82 Cal.Rptr.3d 778, 166 Cal.App.4th 579.

The intent of the Legislature in prohibiting expungement of convictions for lewd or lascivious acts is not punishment but public safety.  People v. Mgebrov (App. 1 Dist. 2008) 82 Cal.Rptr.3d 778, 166 Cal.App.4th 579.

Committing a lewd act with a child is a crime of moral turpitude and moral depravity that has some tendency in reason to undermine witness credibility, and thus a trial court has discretion in a proper case to permit evidence of a witness’s conviction for such a lewd act to attack the credibility of the witness.  Piscitelli v. Salesian Soc. (App. 2 Dist. 2008) 82 Cal.Rptr.3d 139, 166 Cal.App.4th 1.

Provision precluding persons convicted of lewd act on child from release from penalties granted upon completion of probation did not apply to defendant who pleaded guilty to attempted lewd acts on child and who successfully completed his probation.  People v. Lewis (App. 4 Dist. 2006) 53 Cal.Rptr.3d 40, 146 Cal.App.4th 294.

Parole condition broadly prohibiting convicted child molester from using computer or Internet imposed greater restriction on his rights than was reasonably necessary to accomplish state’s legitimate goal of preventing further criminal conduct, where the condition bore no relation to the conviction, which had not involved computer use, but rather arose from parolee’s befriending victim in youth program; more narrowly focused restriction could have been enforced by implementing unannounced inspections of material stored on parolee’s hard drive or removable disks, monitoring software, or surreptitious invitation to parolee to respond to government–placed Internet ads for pornography.  In re Stevens (App. 2 Dist. 2004) 15 Cal.Rptr.3d 168, 119 Cal.App.4th 1228, as modified.

 

Evidence supported finding that juvenile had repeatedly committed sexual abuse of his seven-year-old niece, as required to support commitment determination to California Youth Authority (CYA) for two years or until the juvenile became age 25, whichever occurred later; fact that juvenile committed assaults continuously while he had recurring access to his niece, thus elevating the severity of his offense from a violation of the statute prohibiting lewd or lascivious conduct with child under the age of 14 to one chargeable under the statute prohibiting the continuous sexual abuse of a child, did not preclude its designation as an enumerated offense under the statute providing for the commitment of a juvenile to CYA for the aforementioned period.  In re Emilio C. (App. 2 Dist. 2004) 11 Cal.Rptr.3d 85, 116 Cal.App.4th 1058.

Doctrine that specific statute precluded any prosecution under general statute did not apply to preclude prosecution under statute prohibiting continuous sexual abuse of child in conjunction with prosecution under statute prohibiting lewd and lascivious act with child;  legislature created statute prohibiting continuous abuse to cover situation that legislature felt was not covered by other law, and fact that subsequent judicial decision nullified necessity for statute did not transform continuous abuse statute into specific statute to apply only in lieu of general statute.  People v. Hord (App. 5 Dist. 1993) 19 Cal.Rptr.2d 55, 15 Cal.App.4th 711, rehearing denied, review denied.

Language of statute prohibiting continuous sexual abuse of child did not preclude charging defendant with additional offense of committing lewd and lascivious act with child by force or threat of force, provided that date of lewd and lascivious act did not fall within charged time period of continuous sexual abuse;  defendant who committed crime during earlier time frame, or who continued to perpetrate sexual abuse for longer period than that required by offense of continuous sexual abuse, would be more culpable than defendant who only perpetrated continued abuse for limited time.  People v. Hord (App. 5 Dist. 1993) 19 Cal.Rptr.2d 55, 15 Cal.App.4th 711, rehearing denied, review denied.

Statute prohibiting use of a minor in performance involving sexual contact is not a special statute precluding prosecution under general statute prohibiting lewd or lascivious acts with a child under the age of 14, as none of the elements of either offense is an element of the other.  People v. O’Connor (App. 2 Dist. 1992) 10 Cal.Rptr.2d 530, 8 Cal.App.4th 941, review denied.

Offenses under this section are “violent felonies” under sentence enhancement statute (§ 667.5).  People v. Hetherington (App. 4 Dist. 1984) 201 Cal.Rptr. 756, 154 Cal.App.3d 1132.

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8. Legislative Intent of PC 288

California statute criminalizing lewd and lascivious acts against 14 and 15 year old children was enacted to protect those children to same extent as children under 14 years had previously been protected under the law.  Morgan v. Robinson, C.D.Cal.2001, 156 F.Supp.2d 1133.

Purpose of statute prohibiting oral copulation in prison by prison inmates is maintaining prison discipline and order.  People v. Ruffin (App. 5 Dist. 2011) 133 Cal.Rptr.3d 27, 200 Cal.App.4th 669, review denied.

Purposes of the statutes prohibiting oral copulation in prison by prison inmates and prohibiting prison guards from committing acts of oral copulation with prison inmates are to control custodial behavior.  People v. Ruffin (App. 5 Dist. 2011) 133 Cal.Rptr.3d 27, 200 Cal.App.4th 669, review denied.

Multiple-punishments statute does not apply to sexual misconduct that is preparatory in the general sense that it is designed to sexually arouse the perpetrator or the victim.  People v. Alvarez (App. 4 Dist. 2009) 101 Cal.Rptr.3d 169, 178 Cal.App.4th 999, review denied.

Courts must presume the legislature intended each and every word or phrase in statute to have some meaning and serve some useful purpose.  People v. Wallace (App. 5 Dist. 1992) 14 Cal.Rptr.2d 67, 11 Cal.App.4th 568.

This section was enacted to protect children from lustful advances and tamperings of callous and unscrupulous persons as well as from the assaults of depraved unfortunates.  People v. Hobbs (App. 1 Dist. 1952) 109 Cal.App.2d 189, 240 P.2d 411.

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9. Child Abuse Reports and PC 288

In enacting Child Abuse Reporting Act (§ 11165 et seq.) legislature took unusual step of excepting from psychotherapist-patient privilege report made pursuant to Act;  thus, even if psychotherapist-patient privilege had been applicable to relationship between defendant and licensed clinical social worker, privilege would not have prevented social worker’s testimony in defendant’s prosecution on two counts of lewd or lascivious acts with child under age 14.  People v. Battaglia (App. 2 Dist. 1984) 203 Cal.Rptr. 370, 156 Cal.App.3d 1058.

The obligation of a medical practitioner or a nonmedical practitioner, as defined in the Child Abuse Reporting Law (§ 11165 et seq.), to make a report to a child protective agency arises when such person in his or her professional capacity has knowledge of or observes a child who he or she knows or reasonably suspects has been the victim of child abuse, including circumstances when a child under age 14 receives medical attention for a sexually transmitted disease, for pregnancy or for abortion, or when a child age 14 or older receives such attention if additional facts point to child abuse.  67 Op.Atty.Gen. 235, 6-1-84.

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10. Aliens and Immigrants and PC 288 Punishment

Defendant’s prior state conviction for lewd and lascivious acts upon a child under age 14 was a conviction for a “crime of violence” under Sentencing Guidelines section providing for 16-level increase in his offense level for his subsequent conviction for attempted reentry into the United States after removal.  U.S. v. Medina-Villa, C.A.9 (Cal.)2009, 567 F.3d 507, as amended, certiorari denied 130 S.Ct. 1545, 176 L.Ed.2d 138.

Mexican alien’s California conviction for lewd or lascivious acts with child under 14 years of age was “aggravated felony” for purposes of removal under Immigration and Nationality Act (INA).  Rodriguez-Orozco v. Holder, C.A.9,2011, 411 Fed.Appx. 990, 2011 WL 221226, Unreported.

Alien’s prior conviction of lewd and lascivious acts with a minor under California law was not a categorical match to generic offense of sexual abuse of a minor, and thus, was not conviction of an “aggravated felony” as would render him removable.  Navarro-Soqui v. Holder, C.A.92010, 399 Fed.Appx. 166, 2010 WL 3611644, Unreported.

Board of Immigration Appeals (BIA) permissibly relied on printout of hearing minutes from alien’s sentencing hearing to ascertain that length of alien’s sentence was six years, in making per se “particularly serious crime” determination under removal statute, since hearing minutes drafted by court clerk in course of clerk’s official duties were sufficiently reliable, and minutes indicated that alien received suspended six-year sentence, with one year of imprisonment followed by five years of probation actually imposed.  Singh v. Holder, C.A.92009, 357 Fed.Appx. 760, 2009 WL 4884870, Unreported.

District court did not deny unlawful reentry defendant his Sixth Amendment right to a jury trial by finding that defendant had previously been removed after a violent felony conviction, as a necessary predicate to increasing the statutory maximum sentence to 20 years, where defendant had admitted at his change of plea hearing to a prior removal that occurred after his conviction for committing lewd acts on a child.  U.S. v. Juarez-Mendez, C.A.9 (Cal.)2009, 356 Fed.Appx. 958, 2009 WL 4882597, Unreported.

Alien, a native and citizen of Mexico, who was convicted of crime that constituted sexual abuse of a minor, did not comply with requirements for making claim of ineffective assistance of counsel under Matter of Lozada, and thus was not entitled to remand of order of removal; although alien contended that his counsel was “contracted or retained for a fee,” by his wife, there was no contract or proof of payment of fee, alien’s affidavit did not specify relief to be sought, no documentation existed that alien contacted his counsel, and there was no evidence that alien’s complaint to state bar was filed.  Rubio-Bentacourt v. Mukasey, C.A.92008, 304 Fed.Appx. 583, 2008 WL 5342109, Unreported.

Defendant’s prior California conviction of lewd or lascivious act involving a child under the age of 14 years constituted “crime of violence” for purposes of sentence enhancement following defendant’s conviction of being a deported alien found in the United States.  U.S. v. Barajas-Becerril, C.A.9 (Cal.)2008, 298 Fed.Appx. 627, 2008 WL 4817196, Unreported, certiorari denied 129 S.Ct. 1598, 173 L.Ed.2d 688.

Defendant’s prior California conviction of lewd or lascivious act involving a child under the age of 14 years was properly relied upon as a crime of violence to enhance his sentence, following his guilty-plea conviction of being a deported alien found in the United States.  U.S. v. Siriano-Ortiz, C.A.9 (Cal.)2008, 298 Fed.Appx. 609, 2008 WL 4817101, Unreported, certiorari denied 129 S.Ct. 939, 555 U.S. 1116, 173 L.Ed.2d 139.

California crime of lewd or lascivious act on a child under the age of 14 years constituted “sexual abuse of a minor,” and thus an “aggravated felony” under statute listing crimes that qualify as aggravated felonies for purposes of Immigration and Nationality chapter of the United States Code, thus warranting finding of removability.  Alas v. Mukasey, C.A.92008, 293 Fed.Appx. 464, 2008 WL 4185833, Unreported.

Illegal reentry defendant’s prior state conviction for lewd and lascivious acts with a child under 14 was a “crime of violence” under the sentencing guidelines, warranting a 16-level upward adjustment.  U.S. v. Contreras-Murillo, C.A.9 (Cal.)2008, 270 Fed.Appx. 693, 2008 WL 754204, Unreported, certiorari denied 129 S.Ct. 748, 172 L.Ed.2d 743.

Alien’s California conviction for committing a lewd act upon a child was an aggravated felony for purposes of his application for cancellation of removal.  Bustamante v. Gonzales, C.A.92007, 246 Fed.Appx. 459, 2007 WL 2471151, Unreported.

Alien’s California conviction for committing a lewd act upon a child was an aggravated felony for purposes of his application for cancellation of removal.  Bustamante v. Gonzales, C.A.92007, 246 Fed.Appx. 459, 2007 WL 2471151, Unreported.

Government’s prior unsuccessful attempt to remove alien did not raise res judicata bar to consideration by immigration judge (IJ) of alien’s prior state court aggravated felony conviction, in denying alien’s request for cancellation of removal, where prior aggravated felony conviction was not cited in previous removal proceeding as basis for deportation.  Rodriguez-Duran v. Gonzales, C.A.92007, 225 Fed.Appx. 459, 2007 WL 815868, Unreported.

Alien’s California conviction of lewd or lascivious act on a child under the age of 14 years was an aggravated felony which rendered alien removable, despite alien’s later sentencing adjustment.  Nieves-Martinez v. Gonzales, C.A.92006, 193 Fed.Appx. 681, 2006 WL 2087575, Unreported.

Alien’s California conviction for committing lewd and lascivious acts upon a child constituted a conviction for an aggravated felony, and therefore Court of Appeals lacked jurisdiction to review removal order for alien convicted of that offense; California offense of committing lewd and lascivious acts upon a child qualified as “sexual abuse of a minor” within meaning of statute defining “aggravated felony”.  Pineda Apoldo v. Ashcroft, C.A.92004, 111 Fed.Appx. 456, 2004 WL 1763916, Unreported.

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11. Amending or Changing Charges in PC 288 Trial

Trial court, in granting prosecutor’s motion to amend the information during trial to allege five counts of lewd and lascivious behavior with a child under the age of 14 in addition to the five existing counts of aggravated sexual assault on a child under the age of 14, improperly failed to clearly indicate that the five additional charges were based on the same conduct alleged in the first five counts, even though the added charges were for necessarily included offenses, where the court apparently initially granted a motion to add six counts rather than five, and the court failed to give an acquittal-first jury instruction.  People v. Arevalo-Iraheta (App. 4 Dist. 2011) 124 Cal.Rptr.3d 363, 193 Cal.App.4th 1574.

Amendment to the information prior to the completion of the People’s case, to allege five counts of lewd and lascivious behavior with a child under the age of 14, in addition to the five existing counts of aggravated sexual assault on a child under the age of 14, did not improperly deny the defendant his due process right to prepare a defense, even though defendant’s statements to police included an admission to the lesser charges, and even though the trial court did not clearly indicate that the five additional charges were based on the same conduct alleged in the first five counts, since the new charges were necessarily included offenses, the facts adduced at the preliminary hearing and allegations made in the accusatory pleadings more than adequately warned the defendant of the lesser charges, and the court would have had a sua sponte duty to instruct the jury on those offenses as necessarily included crimes.  People v. Arevalo-Iraheta (App. 4 Dist. 2011) 124 Cal.Rptr.3d 363, 193 Cal.App.4th 1574.

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12. Challenging Effective Assistance of Legal Counsel in PC 288 Cases

It was not reasonably probable that defense counsel’s failure to obtain the presence of defendant’s retained expert witness affected the outcome of defendant’s trial for sexual intercourse with child 10 years old or younger and lewd act on child younger than 14 years, and thus the failure was not ineffective assistance of counsel, where the evidence against defendant was strong and largely undisputed, and the testimony expected from witness would merely have duplicated part of the testimony of the People’s expert and did not respond to the People’s theory of guilt.  People v. Dunn (App. 4 Dist. 2012) 141 Cal.Rptr.3d 193, 205 Cal.App.4th 1086, review denied.

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13. General Elements of PC 288 Offense

Corroboration of child’s testimony is not necessary element of proof in prosecution for violation of statute proscribing lewd and lascivious acts upon body of child under 14.  People v. Morales (1967) 61 Cal.Rptr. 764, 254 Cal.App.2d 194;  People v. Pilgrim (1963) 30 Cal.Rptr. 170, 215 Cal.App.2d 374.

California offense of lewd and lascivious acts involving a child has two elements: (1) the touching of an underage child’s body, and (2) with a sexual intent.  U.S. v. Farmer, C.A.9 (Cal.)2010, 627 F.3d 416, certiorari denied 131 S.Ct. 3062, 180 L.Ed.2d 892.

California offense of lewd or lascivious acts on a child aged 14 or 15 by a person at least ten years older, for which defendant had prior conviction, was broader than generic offense of sexual abuse of a minor, and thus, did not categorically qualify under sentencing guidelines as conviction for crime of violence of sexual abuse of a minor, for purposes of 16-level offense level increase for a prior conviction for a crime of violence; underlying California statute neither addressed sexual conduct with younger children, which was per se abusive, nor expressly included physical or psychological abuse as element.  U.S. v. Castro, C.A.9 (Cal.)2010, 607 F.3d 566.

Under California law, lewd and lascivious conduct does not require penetration, the molestation of any particular body part, or the touching of bare skin.  Hovey v. Ayers, C.A.9 (Cal.)2006, 458 F.3d 892.

Prosecution violated defendant’s due process right to notice of the charges against him, in amending the complaint after the prosecution presented its case to allege an additional count of lewd act with duress, fear or force on a child under the age of 14, in addition to the four counts of aggravated sexual assault which had already been charged; the additional count was not included in an earlier amended complaint to which defendant had waived his right to a preliminary hearing.  People v. Peyton (App. 4 Dist. 2009) 98 Cal.Rptr.3d 243, 176 Cal.App.4th 642, rehearing denied, review denied, habeas corpus denied 2012 WL 1203566.

Counsel for a defendant charged with four counts of aggravated sexual assault was ineffective in failing to object to an amendment of the information after the prosecution presented its evidence, alleging an additional fifth offense of lewd act with duress, fear or force on a child under the age of 14; the fifth offense was not included in the amended complaint to which defendant had waived his right to a preliminary hearing, and counsel’s failure to object prejudiced defendant because he was convicted of the additional charge.  People v. Peyton (App. 4 Dist. 2009) 98 Cal.Rptr.3d 243, 176 Cal.App.4th 642, rehearing denied, review denied, habeas corpus denied 2012 WL 1203566.

No “active efforts” to prevent the breakup of Indian family were required under Indian Child Welfare Act (ICWA) before the children could be placed in foster care, even though no prior reunification services had been provided to father, where services were denied to father based on his violent felony of lewd acts on child under 14, father also molested the children’s half-sister, mother allowed father to live with the family despite his sex offender registration, and mother denied that the abuse of half-sister took place; no reasonable court would have ordered the children placed with either parent, rather than in foster care, while the parents were given services which might prevent further sexual abuse.  In re K.B. (App. 4 Dist. 2009) 93 Cal.Rptr.3d 751, 173 Cal.App.4th 1275, rehearing denied, review denied.

In prosecution for forcible lewd and lascivious acts with victim who was nine years old at time of trial, pattern jury instruction stating that the jury should consider rejecting everything said by a witness who the jury determines has “deliberately lied” about something significant adequately covered defendant’s theory of the case that victim lied about the identity of her attacker because her parents coached her to do so, since under such circumstances victim would have “deliberately lied,” regardless of motive or influence.  People v. Chue Vang (App. 3 Dist. 2009) 90 Cal.Rptr.3d 328, 171 Cal.App.4th 1120, review denied.

An attempt to commit a lewd act upon a child requires both an intent to arose, appeal to, or gratify the lust, passions, or sexual desires of the defendant or the child and a direct, if possibly ineffectual, step toward that goal.  People v. Crabtree (App. 2 Dist. 2009) 88 Cal.Rptr.3d 41, 169 Cal.App.4th 1293, review denied, habeas corpus denied 2012 WL 2261116.

Sexually Violent Predators Act (SVPA) does not require that the People plead and prove substantial sexual conduct at time of underlying conviction; because underlying offense may be based on lewd act with child, which does not require substantial sexual conduct, courts must look beyond bare elements of crime to prove that it involved substantial sexual conduct and qualifies as sexually violent offense.  People v. Carlin (App. 6 Dist. 2007) 58 Cal.Rptr.3d 495, 150 Cal.App.4th 322.

Offenses of aggravated sexual assault and forcible lewd acts on child under age of 14 years require proof that force, violence, duress, menace, or fear of immediate and unlawful bodily injury on victim or another person was used.  People v. Cochran (App. 4 Dist. 2002) 126 Cal.Rptr.2d 416, 103 Cal.App.4th 8, habeas corpus dismissed 2007 WL 2481456.

Defendant’s present criminal conduct for forcible lewd acts upon a child together with his past conviction for lewd conduct qualified him for punishment under the one strike sentencing scheme.  People v. Johnson (App. 4 Dist. 2002) 116 Cal.Rptr.2d 742, 96 Cal.App.4th 188, appeal after new sentencing hearing 2003 WL 22010536, unpublished.

Defendant’s “lewd or lascivious act,” and his specific intent of arousing, appealing to, or gratifying passions or sexual desires are separate elements, both of which must be proven in order to support conviction for lewd and lascivious conduct with child.  People v. Sharp (App. 1 Dist. 1994) 36 Cal.Rptr.2d 117, 29 Cal.App.4th 1772, rehearing denied, review denied, certiorari denied 115 S.Ct. 2006, 514 U.S. 1130, 131 L.Ed.2d 1006, habeas corpus dismissed 2002 WL 202375.

Under statute proscribing lewd or lascivious acts with child under age of 14 by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on victim or another person, element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury is intended as requirement that lewd act be undertaken without consent of victim.  People v. Neel (App. 3 Dist. 1993) 24 Cal.Rptr.2d 293, 19 Cal.App.4th 1784, review denied.

Lewd and lascivious act need not be inherently sexual in nature nor need it be shown that offender touched child’s private parts;  crime is committed by any touching of child with requisite intent.  People v. Gilbert (App. 6 Dist. 1992) 7 Cal.Rptr.2d 660, 5 Cal.App.4th 1372, review denied.

The particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction, but the victim must describe the kind of act or acts committed with sufficient specificity to assure that unlawful conduct occurred and to differentiate between the various kinds of proscribed conduct, must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment, and must be able to describe the general time period in which these acts occurred to assure that the acts were committed within the applicable limitation period.  People v. Jones (1990) 270 Cal.Rptr. 611, 51 Cal.3d 34, 51 Cal.3d 294, 792 P.2d 643, as modified, on remand 273 Cal.Rptr. 292.

It is not necessary to sustain a conviction of violation of this section that rape be established, that there be an attempt to commit rape, that there be any penetration, or even that the act be sexual in character, since the corpus delicti of the crime consists of any lewd or lascivious act upon any part of the body of a child under the age of 14 years with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of either the perpetrator or the child.  People v. Nothnagel (App. 2 Dist. 1960) 9 Cal.Rptr. 519, 187 Cal.App.2d 219.

To sustain a conviction of a charge of lascivious conduct upon a female child under the age of fourteen years, it is not necessary to prove an attempt to commit rape, or that child failed to make an outcry or attempted to resist the conduct or acts complained of.  People v. Showers (App. 1 Dist. 1949) 90 Cal.App.2d 248, 202 P.2d 814.

In prosecution for committing lewd acts on female child in violation of this section, in view of secrecy surrounding commission of such crime, all that is required in proof of charge is that corpus delicti be proved beyond reasonable doubt, which may be by circumstantial evidence.  People v. Ewing (App. 1 Dist. 1925) 71 Cal.App. 138, 234 P. 917.

An indictment charging that accused committed a lewd act on the body of a female child under the age of 14 years by placing her hand on his private parts with felonious intent to arouse her sexual desires sufficiently charged the offense denounced by this section, punishing lewdness as to the body of a child.  People v. Anthony (App. 1912) 20 Cal.App. 586, 129 P. 968.

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14. Definition of “any person” under PC 288

In a prosecution for lewd and lascivious conduct with a child, under this section, providing that the offense may be committed by “any person,” a child under the age of 14 years is such a person.  People v. Love (App. 1916) 29 Cal.App. 521, 157 P. 9.

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15. “Lewd and Lascivious” under PC 288

Sentence of 71 months’ imprisonment, imposed upon conviction for illegally re-entering the United States following removal, was substantively reasonable; sentence was in the middle of the Sentencing Guidelines range, and sentencing court carefully and rationally considered the statutory sentencing factors, emphasizing the need to protect the public in light of defendant’s prior California conviction for committing lewd and lascivious acts upon a child under the age of fourteen, as well as the need for deterrence, given that defendant had previously been deported ten times.  U.S. v. Orozco-Acosta, C.A.9 (Cal.)2010, 607 F.3d 1156, certiorari denied 131 S.Ct. 946, 178 L.Ed.2d 782.

Application of the sixteen-level crime-of-violence enhancement, at sentencing for illegally re-entering the United States following removal, on basis that defendant was previously deported after a crime of violence, was not procedurally erroneous; defendant’s deportation followed his conviction for the California crime of committing lewd and lascivious acts upon a child under the age of fourteen.  U.S. v. Orozco-Acosta, C.A.9 (Cal.)2010, 607 F.3d 1156, certiorari denied 131 S.Ct. 946, 178 L.Ed.2d 782.

Juvenile’s statements to officer encompassed all the elements of the crime of lewd act upon a child, including intent, and thus constituted an admissible confession, where juvenile told officer that he had pulled the victim’s pants down below her buttocks area, that he had kissed the victim in her vagina, “just the once,” that his penis might have touched her chin or her cheek area, that he had asked her to kiss his penis, that it was a violation, and by that he meant it was something like rape or attempted rape, that he understood that it was wrong and illegal, that he was not sure why he had done it, and that “he got carried away.”  In re J.A. (App. 2 Dist. 2011) 130 Cal.Rptr.3d 512, 198 Cal.App.4th 914.

For a defendant to commit the offense of lewd and lascivious acts on a child under the age of 14, for purposes of the continuous sexual abuse statute, the defendant’s touching of the child need not be done in a lewd or sexual manner.  People v. Sigala (App. 2 Dist. 2011) 119 Cal.Rptr.3d 674, 191 Cal.App.4th 695, review denied.

Statute criminalizing commission of a lewd act upon a child under the age of 14 is violated by any touching of an underage child, including a constructive touching by the victim at the defendant’s direction, accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

To find that Sexually Violent Predators Act (SVPA) defendant’s underlying conviction for lewd act on child involved substantial sexual conduct” did not require finding that requisite substantial sexual conduct was part of discrete touching resulting in conviction.  People v. Carlin (App. 6 Dist. 2007) 58 Cal.Rptr.3d 495, 150 Cal.App.4th 322.

Right of a parent to discipline a child is no defense to a charge of lewd or lascivious conduct on a child, which requires that the touching be committed with a sexual intent.  People v. Smith (App. 6 Dist. 2002) 120 Cal.Rptr.2d 185, 98 Cal.App.4th 1182, review denied, denial of habeas corpus affirmed 220 Fed.Appx. 563, 2007 WL 387589, certiorari denied 128 S.Ct. 319, 552 U.S. 930, 169 L.Ed.2d 225.

Defendant’s touching of child victim’s midthigh with his hand, while he was masturbating, constituted a “lewd act” for purposes of child molestation statute.  People v. Diaz (App. 2 Dist. 1996) 49 Cal.Rptr.2d 252, 41 Cal.App.4th 1424, review denied.

Trial court’s definition of lewd act as “any touching with the specific intention to arouse, appeal to, or gratify the sexual desires of either party” which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire did not prejudice defendant charged with committing lewd action on child;  if jury convicted defendant under traditional definition of lewd act as “any touching” with requisite intent, no error occurred, and if any jurors instead applied more restrictive definition declaring act by itself to be lewd, defendant could not have been prejudiced, since acts found to be lewd under more restrictive definition would, a fortiori, have convicted him under traditional definition.  People v. Levesque (App. 1 Dist. 1995) 41 Cal.Rptr.2d 439, 35 Cal.App.4th 530, modified on denial of rehearing.

Definition of “lewd act” for offense of committing lewd act against child is any touching of body of child with specific intent to arouse, appeal to, or gratify sexual desires of either party.  People v. Levesque (App. 1 Dist. 1995) 41 Cal.Rptr.2d 439, 35 Cal.App.4th 530, modified on denial of rehearing.

Determination of whether defendant’s touching of child was “innocuous” or “lewd or lascivious” necessarily depends on defendant’s intent, not sexual standards of objectively reasonable person.  People v. Levesque (App. 1 Dist. 1995) 41 Cal.Rptr.2d 439, 35 Cal.App.4th 530, modified on denial of rehearing.

Defendant’s “lewd or lascivious act,” and his specific intent of arousing, appealing to, or gratifying passions or sexual desires are separate elements, both of which must be proven in order to support conviction for lewd and lascivious conduct with child.  People v. Sharp (App. 1 Dist. 1994) 36 Cal.Rptr.2d 117, 29 Cal.App.4th 1772, rehearing denied, review denied, certiorari denied 115 S.Ct. 2006, 514 U.S. 1130, 131 L.Ed.2d 1006, habeas corpus dismissed 2002 WL 202375.

Any touching of any part of body of child under the age of 14 can be a “lewd or lascivious act” within meaning of criminal statute if, under totality of circumstances in which act occurred, including any secretive or predatory conduct by defendant, a reasonable person could conclude that it was sexual in nature.  People v. Sharp (App. 1 Dist. 1994) 36 Cal.Rptr.2d 117, 29 Cal.App.4th 1772, rehearing denied, review denied, certiorari denied 115 S.Ct. 2006, 514 U.S. 1130, 131 L.Ed.2d 1006, habeas corpus dismissed 2002 WL 202375.

Inadvertent or casual, nonoffensive touching, which is unaccompanied by other direct or circumstantial evidence of intent to arouse, appeal to or gratify lust, passion or sexual desire of defendant or child, will not qualify as “lewd or lascivious act” within meaning of criminal statute proscribing lewd or lascivious acts with children.  People v. Sharp (App. 1 Dist. 1994) 36 Cal.Rptr.2d 117, 29 Cal.App.4th 1772, rehearing denied, review denied, certiorari denied 115 S.Ct. 2006, 514 U.S. 1130, 131 L.Ed.2d 1006, habeas corpus dismissed 2002 WL 202375.

Although “lewd or lascivious act” within meaning of statute concerning lewd or lascivious acts with child under age 14 is not confined to genital touching, nevertheless, touching must be lewd.  People v. Gaglione (App. 1 Dist. 1994) 32 Cal.Rptr.2d 169, 26 Cal.App.4th 1291, rehearing denied, review denied.

“Lewd or lascivious act” is one which is sexually unchaste or licentious, suggesting of or tending to moral looseness, inciting to sensual desire or imagination, inclined to lechery, or tending to arouse sexual desire.  People v. Wallace (App. 5 Dist. 1992) 14 Cal.Rptr.2d 67, 11 Cal.App.4th 568.

Defendant’s act of forcing victim to lick his scrotum constituted lewd and lascivious conduct, whether or not that act constituted oral copulation.  People v. Catelli (App. 3 Dist. 1991) 278 Cal.Rptr. 452, 227 Cal.App.3d 1434, review denied.

Children’s drinking of urine qualified as “lewd act” and “touching” that would permit conviction under this section, for compelling child to drink urine;  children testified to being forced to commit act during period of numerous molestations, touching required to support conviction could be done by child himself at defendant’s instigation, and presence or absence of object such as cup or bottle was immaterial.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

State’s failure to specify the lewd acts on which it relied to support “lewd acts upon child” charge did not prejudice defendant, though jurors were thereby permitted to rely on acts of touching and fondling merely incidental or preparatory to crime charged in separate count, as jurors had no reasonable basis for concluding that child was telling truth as to certain incidental touchings but lying as to other acts sufficient to support charge.  People v. Bothuel (App. 4 Dist. 1988) 252 Cal.Rptr. 596, 205 Cal.App.3d 581.

Under this section the words “lewd and lascivious,” as so used, did not limit the application of the section to an act attempted or committed between persons of opposite sexes.  People v. Zuell (App. 1905) 2 Cal.App. 59, 82 P. 1128.

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16. The Intent Requirement under PC 288

Insured’s acts in violation of this section created inference of intent to injure which could not be overcome by evidence showing lack of intent to harm, and thus, insured’s actions of sexually molesting 12-year-old child was willful as matter of law within mobile home owners’ policy exclusion for bodily injury or property damage expected or intended by insured.  State Farm Fire and Cas. Co. v. Estate of Jenner, C.A.9 (Cal.)1989, 874 F.2d 604.

The statute prohibiting lewd acts on a child under 14 can be violated by touching through the victim’s clothing, and can involve any part of the body, so long as the perpetrator has the required intent to sexually arouse himself or the child.  People v. Gray (App. 2 Dist. 2011) 131 Cal.Rptr.3d 674, 199 Cal.App.4th 167, review granted and opinion superseded 133 Cal.Rptr.3d 855, 264 P.3d 821.

For the offense of lewd acts on a child under 14, the controlling factor is the purpose of the perpetrator in touching the child, and each case is to be examined in the light of the intent with which the act was done; if the intent of the act, although it may have the outward appearance of innocence, is to arouse the lust, the passion or the sexual desire of the perpetrator or the child, it stands condemned by the statute.  People v. Gray (App. 2 Dist. 2011) 131 Cal.Rptr.3d 674, 199 Cal.App.4th 167, review granted and opinion superseded 133 Cal.Rptr.3d 855, 264 P.3d 821.

In the context of a “sexual abuse” jurisdictional allegation in a dependency proceeding, trial court was required to find that a 13-year-old child’s half-brother’s father had the requisite intent of seeking immediate sexual gratification for the underlying offenses of child molestation or lewd or lascivious act against a child, where half-brother’s father engaged in tongue-to-tongue kissing with the child on at least three occasions and claimed to be in love with her.  In re R.C. (App. 2 Dist. 2011) 126 Cal.Rptr.3d 418, 196 Cal.App.4th 741.

Under statute prohibiting lewd or lascivious act against a child, any touching of a child under the age of 14 is a felony offense even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim.  In re R.C. (App. 2 Dist. 2011) 126 Cal.Rptr.3d 418, 196 Cal.App.4th 741.

The gist of the offense of lewd or lascivious act against a child is the defendant’s intent to sexually exploit a child, not the nature of the offending act.  In re R.C. (App. 2 Dist. 2011) 126 Cal.Rptr.3d 418, 196 Cal.App.4th 741.

In prosecution for committing a lewd act upon a child under the age of 14, the purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done; if the intent of the act, although it may have the outward appearance of innocence, is to arouse the lust, the passion, or the sexual desire of the perpetrator or the child, it stands condemned by the statute.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

Unlawful sexual intercourse with child under 14 committed without specific intent to arouse the lust, passions, or sexual desires of the offender or the child, would constitute the offense of unlawful sexual intercourse with minor without simultaneously constituting the offense of lewd acts with child under 14.  People v. Ranscht (App. 4 Dist. 2009) 93 Cal.Rptr.3d 800, 173 Cal.App.4th 1369.

Lewd or lascivious conduct with a child under 14 years of age requires the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused.  People v. Warner (2006) 47 Cal.Rptr.3d 1, 39 Cal.4th 548, 139 P.3d 475, as modified.

Statute proscribing commission of any lewd or lascivious act on child under age of 14 “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of perpetrator or child establishes specific intent crime.  People v. Whitham (App. 5 Dist. 1995) 45 Cal.Rptr.2d 571, 38 Cal.App.4th 1282, modified on denial of rehearing, review denied.

Defendant’s intent and act must be considered together to effectuate statutory purpose of proscribing wide variety of sexually motivated acts that involve touching child in lewd and harmful way, even though there is no evidence that sex crime has occurred under any other statutory provision.  People v. Levesque (App. 1 Dist. 1995) 41 Cal.Rptr.2d 439, 35 Cal.App.4th 530, modified on denial of rehearing.

Purpose of perpetrator in touching child is controlling factor in determining whether act is lewd and lascivious, and each case is to be examined in light of intent with which act was done.  People v. Gilbert (App. 6 Dist. 1992) 7 Cal.Rptr.2d 660, 5 Cal.App.4th 1372, review denied.

Violation of this section is not established unless there is proof of specific intent of arousing, appealing to, or gratifying lusts or passions or central desires of defendant or child.  People v. Mansell (App. 2 Dist. 1964) 39 Cal.Rptr. 187, 227 Cal.App.2d 842.

In a prosecution for violation of this section, the purpose of the perpetrator in touching the child is the controlling factor, and in each case it is to be examined in the light of the intent with which the act was done.  People v. Nothnagel (App. 2 Dist. 1960) 9 Cal.Rptr. 519, 187 Cal.App.2d 219.

In prosecution for lewd and lascivious acts on bodies of seven year old boy and eight year old girl, instruction that touching, fondling, rubbing or feeling body, members or private parts of minor under age of 14 years, with intent of arousing, appealing to and gratifying the lusts, passions and sexual desires of either the minor or the accused was proscribed even though such touching, fondling, rubbing or feeling was through clothing of minor was sufficient as to the specific intent required under the circumstances of the case.  People v. Elliott (App. 1958) 158 Cal.App.2d 623, 322 P.2d 1029.

Reasonable deduction of criminal intent made from proven facts by trial judge sitting without a jury could not be disturbed, since intent was primarily addressed to trier of facts and might be established by circumstantial evidence and be deduced from circumstances of the crime.  People v. Grider (App. 1935) 10 Cal.App.2d 287, 51 P.2d 881.

Under statute prohibiting lewd or lascivious act against a child, to determine whether a defendant acted with sexual intent, all the circumstances are examined, including the nature and manner of the touching, the defendant’s extrajudicial statements, the relationship of the parties, and any coercion, bribery or deceit used to obtain the victim’s cooperation or avoid detection.  In re R.C. (App. 2 Dist. 2011) 126 Cal.Rptr.3d 418, 196 Cal.App.4th 741.

 

A reasonable jury, if it credited minor girl’s testimony that defendant had caressed her thigh, could infer that defendant acted with the requisite intent, and that the alleged conduct thus constituted a sex crime.  People v. Mullens (App. 4 Dist. 2004) 14 Cal.Rptr.3d 534, 119 Cal.App.4th 648, modified on denial of rehearing, review denied.

Crime of committing lewd act on child under age 14 does not require that touching involved be that of sexual organ; crux of such crime is that defendant have specific intent to arouse sexual desire when any touching of any part of body of underage child is committed.  People v. Chambless (App. 4 Dist. 1999) 88 Cal.Rptr.2d 444, 74 Cal.App.4th 773, review denied.

In prosecution for forcible lewd conduct, trier of fact looks to all circumstances, including charged act, to determine whether it was preformed with required specific intent;  other factors include defendant’s extrajudicial statements, other acts of lewd conduct admitted or charged in case, relationship of parties, and any coercion, bribery, or deceit used to obtain victim’s cooperation or avoid detection.  People v. Martinez (1995) 45 Cal.Rptr.2d 905, 11 Cal.4th 434, 903 P.2d 1037.

In prosecution for forcible lewd conduct, trier of fact looks to all circumstances, including charged act, to determine whether it was preformed with required specific intent;  other factors include defendant’s extrajudicial statements, other acts of lewd conduct admitted or charged in case, relationship of parties, and any coercion, bribery, or deceit used to obtain victim’s cooperation or avoid detection.  People v. Martinez (1995) 45 Cal.Rptr.2d 905, 11 Cal.4th 434, 903 P.2d 1037.

In prosecution for attempting to commit lewd act upon child, defendant did not have to commit lewd act;  defendant’s intent could be inferred from his conduct which was to order the victim to commit a lewd act upon himself.  People v. Imler (App. 2 Dist. 1992) 11 Cal.Rptr.2d 915, 9 Cal.App.4th 1178, review denied.

In prosecution for attempt to commit lewd act upon child, defendant’s intent to commit lewd conduct could be inferred from circumstances of offense as well as from tape recorded telephone call defendant made to different victim;  circumstances of offense involved defendant telephoning 12-year-old child, informing him that his father was a hostage and ordering child to disrobe and touch his penis, while tape recording showed that defendant ordered different victim to remove her clothing, masturbate using curling iron, tell him about her sex life, “talk dirty” to him and describe what she was doing with curling iron.  People v. Imler (App. 2 Dist. 1992) 11 Cal.Rptr.2d 915, 9 Cal.App.4th 1178, review denied.

Instructing jury that it could find commission of unlawful lewd act if defendant compelled child to remove his or her clothing “and” defendant had requisite specific intent did not improperly mislead jurors in murder prosecution to believe that sexual intent could have been focused on some future unrealized act;  it was manifest from special instruction itself that constructive disrobing and sexual intent were required to coincide in order for crime to occur.  People v. Mickle (1991) 284 Cal.Rptr. 511, 54 Cal.3d 140, 814 P.2d 290, rehearing denied, certiorari denied 112 S.Ct. 1679, 503 U.S. 988, 118 L.Ed.2d 396.

That lewd or lascivious acts upon child were performed with criminal intent may be inferred from circumstances under which acts were committed;  each case must be decided on its own facts.  In re Paul C. (App. 3 Dist. 1990) 270 Cal.Rptr. 369, 221 Cal.App.3d 43, review denied.

Probative value of evidence of troubled sex-oriented behavior in children during their attendance at nursery school operated by defendant, in resolving material issue as to defendant’s intent when he photographed children in the nude, greatly outweighed prejudicial impact of such evidence, so that failure to weigh on the record probative value of evidence as against the danger of prejudice to defendant was harmless error;  such evidence was circumstantial evidence that defendant harbored intent to arouse sexual desires of children, himself, or both, and his responsibility for behavioral changes, which he contended was highly speculative, thereby making evidence unduly prejudicial, was established by fact that behavioral changes abated when children were removed from nursery school and from contact with defendant.  People v. Meacham (App. 2 Dist. 1984) 199 Cal.Rptr. 586, 152 Cal.App.3d 142.

While a specific intent to commit a violation of this section must be shown beyond a reasonable doubt and the jury was so instructed, such intent may be shown by circumstantial evidence.  People v. Worthington (App. 3 Dist. 1974) 113 Cal.Rptr. 322, 38 Cal.App.3d 359.

In prosecution for lewd and lascivious conduct toward a child, while proof of the specific intent prescribed by this section is essential to a conviction, proof of such fact, like any other, may be made circumstantially, and it is not necessary to show that there was any intent to arouse sexual desires of the defendant or the complainant.  People v. Piccionelli (App. 1959) 175 Cal.App.2d 391, 346 P.2d 542.

In prosecution for performing lewd and lascivious acts upon a minor under 14 years of age, it is the circumstances connected with the offense by which the necessary statutory intent of arousing the passions or sexual desires of such person or of such child, is manifested.  People v. Wilder (App. 1957) 151 Cal.App.2d 698, 312 P.2d 425.

If intent of the act, although it may have the outward appearance of innocence, is to arouse or appeal to or gratify the lust and the passion or the sexual desire of the perpetrator it stands condemned by this section, or if it is intended to arouse feelings of passion or sexual desire in the child it likewise stands condemned, and the intent with which the act is done is manifested by the circumstances under which it was committed, People v. Hobbs (App. 1 Dist. 1952) 109 Cal.App.2d 189, 240 P.2d 411.

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17. Using Evidence of Prior Sex Offenses to Show Intent under PC 288

Evidence of uncharged prior offenses is admissible to show defendant’s lewd disposition or lewd intent toward prosecuting witness.  People v. Rios (App. 4 Dist. 1992) 12 Cal.Rptr.2d 15, 9 Cal.App.4th 692, review denied.

Child victim’s testimony as to uncharged sexual offenses committed by defendant against him was admissible to show defendant’s lewd intent where victim’s testimony as to charged act was corroborated by testimony of victim’s mother concerning defendant’s admission that he had “touched” victim, and victim’s testimony as to uncharged offenses showed defendant’s sexual interest in and disposition toward victim and provided possible explanation for victim’s reluctance to disclose fact of molestation.  People v. Rios (App. 4 Dist. 1992) 12 Cal.Rptr.2d 15, 9 Cal.App.4th 692, review denied.

Evidence supported conviction for committing lewd and lascivious acts upon child under age 14, even if defendant only rubbed victim’s stomach, back and thigh;  defendant’s pattern of conduct with victim as well as with other young girls permitted jury to find beyond reasonable doubt that acts were committed with requisite intent.  People v. Gilbert (App. 6 Dist. 1992) 7 Cal.Rptr.2d 660, 5 Cal.App.4th 1372, review denied.

Evidence that defendant fondled his 14-year-old stepdaughter over a period in excess of one year before sexual intercourse commenced was inadmissible to prove defendant’s lewd intent, an element of lewd lascivious conduct charge, in view of the fact that intent was not a disputed issue because victim testified to completed acts, and due to nature of acts, intent would be presumed;  prior overruling recognized , 20 Cal.3d 457, 143 Cal.Rptr. 215, 573 P.2d 433.  People v. Ward (App. 5 Dist. 1986) 233 Cal.Rptr. 477, 188 Cal.App.3d 459.

In prosecution of defendant for committing lewd and lascivious acts on bodies of his daughter and stepdaughter, evidence that defendant had committed similar acts with another daughter between 10 and 18 years previously was inadmissible to show criminal intent since remote evidence of his conduct with other daughter could not be reasonably probative of his present intent to gratify his passions by the charged acts.  People v. Thomas (1978) 143 Cal.Rptr. 215, 20 Cal.3d 457, 573 P.2d 433.

In cases involving sex crimes, evidence of other, not too remote, sex offenses with prosecuting witness is admissible to show lewd disposition or intent of defendant towards victim, but where such cases are reduced to contest of credibility and such evidence is limited to uncorroborated testimony of prosecuting witness, trier of fact is not aided by evidence of other offenses.  People v. Crume (App. 3 Dist. 1976) 132 Cal.Rptr. 577, 61 Cal.App.3d 803.

In relation to admission of evidence of other crimes, traditional exceptions which allow evidence of that nature relating to motive and intent also apply to cases involving sex offenses;  disapproving general language to the contrary in People v. Buchel, 141 Cal.App.2d 91, 296 P.2d 113, People v. Westek, 31 Cal.2d 469, 190 P.2d 9, and People v. Sylvia, 54 Cal.2d 115, 4 Cal.Rptr. 509, 351 P.2d 781.  People v. Kelley (1967) 57 Cal.Rptr. 363, 66 Cal.2d 232, 424 P.2d 947.

Not guilty plea by defendant does not place his intent in issue so as to make proof of sex offenses with others always admissible;  such evidence is admissible in cases where proof of defendant’s intent is ambiguous, but where the acts, if committed, indisputably show an evil intent, and defendant does not specifically raise the issue of intent, evidence of other crimes should be admissible only when they were performed with prosecuting witness or where the offenses are not too remote, are similar to offense charged and are committed with persons similar to prosecuting witness;  disapproving anything to the contrary in People v. Baskett, 237 Cal.App.2d 712, 47 Cal.Rptr. 274.  People v. Kelley (1967) 57 Cal.Rptr. 363, 66 Cal.2d 232, 424 P.2d 947.

When defendant testifying in his own behalf acknowledges the physical touching of the child but asserts his innocent intent, thereby definitely placing in issue the necessary element of intent, prosecution may then introduce evidence that defendant has committed similar offenses upon persons other than prosecuting witness in order to rebut testimony of defendant on a point material to establishment of his guilt of crime charged.  People v. Kelley (1967) 57 Cal.Rptr. 363, 66 Cal.2d 232, 424 P.2d 947.

Evidence of other sexual misconduct by defendant, charged with violations of this section and § 288a, was not received to show pattern, habit or history of criminality, nor to show propensity of defendant to commit a certain type of crime, but to show a practice, whether frequent or infrequent, of obtaining sexual gratification from type of act indulged in with minor child from which inference might be drawn that that act was done with intent of obtaining such gratification.  People v. Schaletzke (App. 2 Dist. 1966) 49 Cal.Rptr. 275, 239 Cal.App.2d 881.

In prosecution for committing lewd acts on a child under 14 years of age, trial court properly instructed jury that evidence admitted without objection, relative to similar acts which prosecuting witness testified had been committed upon her person by defendant on a prior occasion was to be considered by the jury only in determining disposition of defendant towards the child and his intent at the time of the alleged offense charged.  People v. Pilgrim (App. 1958) 160 Cal.App.2d 528, 325 P.2d 143.

In prosecution for lewd and lascivious conduct in relation to young boys, where defendant on direct examination volunteered testimony that he had never committed upon any boy any such sexual crime as was charged, rebuttal testimony of boys other than prosecuting witnesses that defendant had committed acts on them within same general period pertinent to time of alleged criminal conduct for which defendant was being prosecuted was admissible on issue of intent.  People v. Westek (1948) 31 Cal.2d 469, 190 P.2d 9.

In a prosecution for lewdness with a child, evidence of other acts of lasciviousness and their effect is admissible for the purpose of showing intent.  People v. Harrison (App. 1910) 14 Cal.App. 545, 112 P. 733.

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18. Age of the Defendant as a Factor for Showing Intent under PC 288

There was sufficient evidence that eleven-year-old juvenile knew of wrongfulness of his acts to support finding that he committed felony lewd touching of victim under 14 years of age; juvenile’s mother had told him it was wrong to touch girls in certain places, and when target of his advances verbally declined or resisted he refused to accept her rebuffs.  In re Jerry M. (App. 4 Dist. 1997) 69 Cal.Rptr.2d 148, 59 Cal.App.4th 289.InfantsKey Number2641(5)

In proving intent to satisfy sexual desires, as required for conviction of felony lewd touching of victim under 14 years of age, age of defendant is a consideration.  In re Jerry M. (App. 4 Dist. 1997) 69 Cal.Rptr.2d 148, 59 Cal.App.4th 289.

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19. The Need for Sufficient Evidence to Show Intent for PC 288 Conviction

Sufficient evidence established that defendant touched child with requisite lewd intent, as required to support his California conviction for sexual molestation of a minor, even though defendant claimed his alleged touching of child’s chest and groin occurred during wrestling type of play; child testified that she immediately recognized the touching as improper, struggled to break free from defendant, and asked defendant not to touch her that way.  Gonzalez v. Knowles, C.A.9 (Cal.)2008, 515 F.3d 1006.

Jury’s finding that defendant intended to commit a lewd and lascivious act on a minor when he went to a house where he had arranged to meet with a person who claimed to be a 12-year-old girl, in convicting him of attempted lewd or lascivious conduct with a minor under the age of 14, was supported by substantial evidence, including evidence that defendant had engaged in a sexually explicit discussion with the person, asked her detailed sexual questions, and told her that he could fulfill her sexual needs.  People v. Singh (App. 4 Dist. 2011) 129 Cal.Rptr.3d 461, 198 Cal.App.4th 364, review denied.

Defendants convicted under the statute prohibiting lewd or lascivious conduct with a minor under the age of 14 are not similarly situated with defendants convicted under the statutes prohibiting unlawful sexual intercourse with a minor, oral copulation with a minor, or sexual penetration with a minor, and thus mandatory sex offender registration does not violate their right to equal protection of the laws, since their offense only applies to minors under the age of 14 and is a specific intent offense.  People v. Singh (App. 4 Dist. 2011) 129 Cal.Rptr.3d 461, 198 Cal.App.4th 364, review denied.

Evidence was sufficient to establish requisite concurrence of touching and lewd intent, thus supporting conviction for commission of a lewd act upon a child under age 14; touching and lewd intent occurred over course of defendant directing minor victims, his stepdaughters, to change their clothes and to each put on provocative clothing that he provided, and defendant then watching and taking photographs of blindfolded girls searching for money, and although defendant did not touch the girls when they removed their clothing and dressed in the provocative clothing, the act of changing clothing was sexually motivated by defendant’s lascivious desire to observe and take pictures of girls in provocative clothing.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

Steps undertaken by defendant were sufficient to support conviction for attempt to commit a lewd act upon a child, where, after sexually charged online chats with victim, defendant drove to bus station where he expected victim to appear pursuant to his plan, and erection pills, condoms, bubble bath, and a recently-purchased bikini were discovered in trunk of defendant’s vehicle.  People v. Crabtree (App. 2 Dist. 2009) 88 Cal.Rptr.3d 41, 169 Cal.App.4th 1293, review denied, habeas corpus denied 2012 WL 2261116.

Because intent to arouse or gratify lust or sexual desires, for crime of lewd or lascivious acts on child under 14, can seldom be proven by direct evidence, it may be inferred from the circumstances.  In re Mariah T. (App. 2 Dist. 2008) 71 Cal.Rptr.3d 542, 159 Cal.App.4th 428.

Evidence was sufficient to sustain defendant’s conviction of attempted lewd and lascivious acts on minor; defendant’s strikingly similar methods of operation involving other victims clearly showed intent to commit lewd and lascivious acts on victim, and defendant’s attempt to have victim ingest drugs, his comment that he could cut someone’s throat and he wouldn’t care, and his offer of money for sex went beyond mere preparation.  People v. Ansaldo (App. 4 Dist. 1998) 71 Cal.Rptr.2d 283, 60 Cal.App.4th 1190, rehearing denied.

Evidence supported finding of attempted or actual lewd or lascivious acts with child under age 14 and, therefore, supported conviction for first-degree murder on felony-murder theory;  defendant confessed that he lured victim to his apartment to photograph him in the nude, jury could infer that defendant disrobed victim while alive with lewd or lascivious intent, and jury received evidence of defendant’s sexual interest in youths, including pornographic magazines and photographs featuring young boys in the nude.  People v. Memro (1995) 47 Cal.Rptr.2d 219, 11 Cal.4th 786, 12 Cal.4th 783D, 905 P.2d 1305, modified on denial of rehearing, certiorari denied 117 S.Ct. 106, 519 U.S. 834, 136 L.Ed.2d 60.

Evidence that defendant gave 12-year-old victim a “French kiss” on the mouth and touched her breast by placing his hand under her shirt was sufficient to support conviction for lewd and lascivious conduct;  such conduct betrayed defendant’s intent to gratify his own sexual desires.  People v. Guardado (App. 6 Dist. 1995) 47 Cal.Rptr.2d 81, 40 Cal.App.4th 757, review denied.

Finding that 13-year-old child had asked younger child to give him oral sex with “lewd or lascivious” intent was sufficiently supported by evidence presented in juvenile proceeding, including younger child’s testimony that 13-year-old had erection.  In re Paul C. (App. 3 Dist. 1990) 270 Cal.Rptr. 369, 221 Cal.App.3d 43, review denied.

Where defendant was charged with committing lewd act upon three-year-old girl, witnesses’ observations of defendant with child and that defendant did not appear intoxicated made prima facie showing of defendant’s intent to arouse, appeal to, or gratify his lust, passions, or sexual desires with child.  People v. O’Tremba (App. 2 Dist. 1970) 84 Cal.Rptr. 336, 4 Cal.App.3d 524.

Testimony at trial, that victim accepted ride with defendant, that he stopped on dead-end dirt road and raped her, was sufficient to establish lewd intent and precluded defense of innocent intent.  People v. Smith (App. 4 Dist. 1966) 54 Cal.Rptr. 740, 246 Cal.App.2d 489.

Direct testimony of complaining witness to the acts committed, may be sufficient to indicate requisite intent to violate this section.  People v. Andrus (App. 1958) 159 Cal.App.2d 673, 324 P.2d 617.

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20. Touching of what parts of the body constitute “substantial sexual conduct” under PC 288?

Victim’s testimony that defendant touched his “private part” to hers clearly established “masturbation,” which was sufficient to satisfy the “substantial sexual conduct” probation-denial allegation for the offense of lewd act on child younger than 14 years.  People v. Dunn (App. 4 Dist. 2012) 141 Cal.Rptr.3d 193, 205 Cal.App.4th 1086, review denied.

Conviction for committing a lewd act upon a child under the age of 14 requires any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

Under this section there is no distinction made between private and sexual parts of body, and acts committed upon any part of body of child are sufficient to constitute a violation of section.  People v. Carpenter (App. 1955) 137 Cal.App.2d 792, 291 P.2d 189.

In prosecution for committing lewd and lascivious acts upon a female child seven years old, question to prosecuting witness’ mother as to what word daughter used with relation to the private parts of a man or woman, asked after witness had testified that daughter had a particular name with relation to such private parts, was not objectionable on grounds that no proper foundation had been laid and did not call for a conclusion of the witness.  People v. Aleshire (App. 1 Dist. 1949) 90 Cal.App.2d 506, 203 P.2d 569.

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21. Definition of “touching” under PC 288

California offense of lewd or lascivious act on a child under the age of 14 years has two elements: (1) the touching of an underage child’s body (2) with a sexual intent, and the character of the touching, though perhaps circumstantially relevant to prove intent, is otherwise immaterial; even an “innocuous” touching, innocently and warmly received, violates the statute if effected with lewd intent, and statute can be violated by a person who does not himself touch the victim child, if the person, with the requisite intent, coerces the child to touch himself.  U.S. v. Baron-Medina, C.A.9 (Cal.)1999, 187 F.3d 1144, certiorari denied 121 S.Ct. 1130, 531 U.S. 1167, 148 L.Ed.2d 996.

State court’s determination that individual convicted of lewd act on child committed “substantial sexual conduct” sufficient to support his civil commitment under California Sexually Violent Predator (SVP) Act when he touched children’s genitals was not contrary to, or unreasonable application of, clearly established federal law, where state court interpreted “masturbation” under statute as including mere touching.  Johnson v. Nelson, S.D.Cal.2001, 142 F.Supp.2d 1215.

If the trier of fact is persuaded beyond a reasonable doubt, from all the circumstances, that the touching of a child was sexually motivated, nothing in the language, history, or purpose of the statute prohibiting lewd or lascivious act against a child indicates that the touching should escape punishment simply because it might not be considered a means of sexual gratification by members of the mainstream population.  In re R.C. (App. 2 Dist. 2011) 126 Cal.Rptr.3d 418, 196 Cal.App.4th 741.

Under statute prohibiting lewd or lascivious act against a child, a touching which might appear sexual in context because of the identity of the perpetrator, the nature of the touching, or the absence of an innocent explanation, is more likely to produce a finding that the act was indeed committed for a sexual purpose and constituted a violation of the statute.  In re R.C. (App. 2 Dist. 2011) 126 Cal.Rptr.3d 418, 196 Cal.App.4th 741.

Conviction for committing a lewd act upon a child under the age of 14 requires the defendant to either touch the body of a child or willfully cause a child to touch her own body, the defendant’s body, or the body of someone else.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

A touching which might appear sexual in context because of the identity of the perpetrator, the nature of the touching, or the absence of an innocent explanation, is more likely to produce a finding that the act was indeed committed for a sexual purpose and constituted commission of a lewd act upon a child under the age of 14.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

Masturbation is not a specific criminal offense, but the touching of a minor’s genitals may be an offense under statute making any touching of an underage child accomplished with the requisite intent a crime.  People v. Terry (App. 6 Dist. 2005) 26 Cal.Rptr.3d 71, 127 Cal.App.4th 750, rehearing denied.

Committee’s prior conviction of lewd and lascivious conduct with child under 14 qualified as prior “sexually violent offense,” involving “substantial sexual conduct” under Sexually Violent Predators Act (SVPA), despite lack of skin-to-skin contact, as committee touched victim’s genital region over her clothing.  People v. Whitlock (App. 4 Dist. 2003) 6 Cal.Rptr.3d 389, 113 Cal.App.4th 456, review denied.

Lewd act upon a child under 14 years of age is committed by any touching of an underage child which is accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.  In re Randy S. (App. 4 Dist. 1999) 90 Cal.Rptr.2d 423, 76 Cal.App.4th 400, review denied.

Circumstances of the touching of underage child remain highly relevant in determining whether commission of a lewd act upon a child under 14 years of age has occurred; trier of fact must find a union of act and sexual intent, and such intent must be inferred from all the circumstances beyond a reasonable doubt.  In re Randy S. (App. 4 Dist. 1999) 90 Cal.Rptr.2d 423, 76 Cal.App.4th 400, review denied.

Violation of child molestation statute requires touching body of child under the age of 14, with specific intent of arousing, appealing to, or gratifying lust of child or accused;  touching of sexual organ is not required.  People v. Diaz (App. 2 Dist. 1996) 49 Cal.Rptr.2d 252, 41 Cal.App.4th 1424, review denied.

Child molestation statute is violated by “any touching” of an underage child accomplished with intent of arousing sexual desires of either perpetrator or child;  under the statute, there are no inherently innocent touchings, regardless of toucher’s intent;  any part of the body may be object of sexual fetish, and any touch, in fulfillment of such a fetish, is harmful to child and prohibited by statute.  People v. Diaz (App. 2 Dist. 1996) 49 Cal.Rptr.2d 252, 41 Cal.App.4th 1424, review denied.

To convict for forcible lewd conduct, touching of victim under age of 14 is required, and arousal of sexual desires of either perpetrator or child must be presently intended at time such touching occurs;  however, form, manner, or nature of offending act is not otherwise restricted;  conviction does not depend upon contact with bare skin or “private parts” of defendant or victim, but rather, lewd touching can occur through victim’s clothing and can involve any part of victim’s body.  People v. Martinez (1995) 45 Cal.Rptr.2d 905, 11 Cal.4th 434, 903 P.2d 1037.

Generally, violation of statute prohibiting lewd acts against children occurs whenever defendant “touches” child under age of 14 with requisite specific intent.  People v. Scott (1994) 36 Cal.Rptr.2d 627, 9 Cal.4th 331, 885 P.2d 1040, modified on denial of rehearing.

Conviction for lewd conduct upon child under age of 14 does not require the touching to be overtly sexual in itself.  People v. Marquez (App. 2 Dist. 1994) 33 Cal.Rptr.2d 821, 28 Cal.App.4th 1315.

Jury instruction on offense of commission of lewd or lascivious act upon child under age of 14 improperly defined lewd or lascivious act as “any touching” with the required intent and thus jury was not given adequate guidance for determining whether touching constituted violation of statute prohibiting commission of lewd or lascivious act upon child or misdemeanor offense of annoying or molesting child.  People v. Self (App. 1 Dist. 1993) 16 Cal.Rptr.2d 67, 12 Cal.App.4th 1222, rehearing denied, review denied.

In prosecution for lewd and lascivious acts with child under age 14, jury instructions on essential elements of crime were erroneous in that they defined crime as “any touching” of body of child with required specific intent and did not instruct that touching itself had to be lewd or lascivious and sexual, and the instructional error was prejudicial;  prosecutor further misled jury by telling them “any touching,” innocuous or otherwise, would suffice to violate statute provided that defendant had requisite specific intent at time of touching, and film made by defendant of victims showed many instances of touching of victims’ bodies by defendant that were not lewd in nature but which jury could have found to be lewd under the instruction given.  People v. Wallace (App. 5 Dist. 1992) 14 Cal.Rptr.2d 67, 11 Cal.App.4th 568.

For purposes of statute prohibiting lewd or lascivious acts with child under age 14, lewd act requires a touching;  however, the necessary touching may be done by the child victim or by a third party on the child’s own person at the instigation of the defendant.  People v. Wallace (App. 5 Dist. 1992) 14 Cal.Rptr.2d 67, 11 Cal.App.4th 568.

Defendant must touch victim either directly or indirectly in lewd or lascivious manner to violate statute prohibiting lewd or lascivious acts with child under age 14, and the touching must involve a sexual act;  thus, innocuous or innocent touching (even with the required intent) will not suffice.  People v. Wallace (App. 5 Dist. 1992) 14 Cal.Rptr.2d 67, 11 Cal.App.4th 568.

Statute prohibiting lewd and lascivious acts with a child under the age of 14 is not limited to genital touchings.  People v. O’Connor (App. 2 Dist. 1992) 10 Cal.Rptr.2d 530, 8 Cal.App.4th 941, review denied.

Touching of sexual organ is not required for conviction for commission of lewd act against a child.  People v. Raley (1992) 8 Cal.Rptr.2d 678, 2 Cal.4th 870, 830 P.2d 712, modified on denial of rehearing, certiorari denied 113 S.Ct. 1352, 507 U.S. 945, 122 L.Ed.2d 733, stay granted.

Private parts of victim’s body need not be touched to sustain conviction under this section.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

Act of defendant in placing his arm around shoulder of 11 year old boy as defendant was taking the boy into bungalow did not constitute lewd or lascivious acts on the body of a child under 14, regardless of any intent which defendant may have had with respect to the boy when they should arrive at the bungalow.  People v. Webb (App. 1958) 158 Cal.App.2d 537, 323 P.2d 141.

In view of the fact that defendant cannot be convicted of both lewd and lascivious acts on the body of a child under 14 and of sexual perversion, if convictions are based on the same act, act of defendant in placing his hands on 11 year old boy just prior to forcing act of sexual perversion on boy, for which defendant was convicted, did not constitute lewd or lascivious act on the body of a child under 14, since such touching was merely preparatory to commission of offense of sexual perversion and was therefore a part of that offense.  People v. Webb (App. 1958) 158 Cal.App.2d 537, 323 P.2d 141.

To constitute a violation of this section, making it a felony to commit a lewd or lascivious act upon or with the body of a child, accused need not touch the naked body of prosecuting witness, but it is sufficient that a lewd or lascivious act is committed upon or with the body, or some part or member thereof, of a child under 14 years of age.  People v. Ash (App. 2 Dist. 1945) 70 Cal.App.2d 583, 161 P.2d 415.

In order to convict a defendant of violating this section, relating to lewd and lascivious conduct on body of a child, it would not be necessary to prove that the defendant laid hands on any particular part of the body of the child.  People v. Hartshorn (App. 1 Dist. 1943) 59 Cal.App.2d 285, 138 P.2d 782.

In trial for committing lewd or lascivious acts on body of ten year old girl, instruction that to constitute such offense, it is not necessary that child’s bare skin be touched, but that touching of child’s body through clothing, with intent to arouse lusts of child or accused, constitutes offense, was not erroneous as disregarding matter of lewd and lascivious touching, but proper as in conformity with statutory provisions.  People v. Schultz (App. 2 Dist. 1942) 49 Cal.App.2d 38, 120 P.2d 893.

Crime of committing lewd or lascivious acts upon body of child may be completed without actual contact with child’s body.  People v. Lanham (App. 1934) 137 Cal.App. 737, 31 P.2d 410.

Children’s touching their own genitalia at the instigation of defendant was “constructive touching” by defendant himself, sufficient to sustain convictions for lewd and lascivious acts on or with the body of a child under 14.  People v. Meacham (App. 2 Dist. 1984) 199 Cal.Rptr. 586, 152 Cal.App.3d 142.

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22. What constitutes sufficient evidence of “touching” under PC 288?

Evidence that victim of lewd and lascivious conduct with child under age of 14 reported that offender had touched her in “crotch” on outside of her clothing while she was sitting on his lap, together with offender’s admission that his touching was intentional and his asking child to keep incident a secret, supported finding that offense involved “substantial sexual conduct” within meaning of Sexually Violent Predators Act (SVPA), and thus qualified as prior “sexually violent offense.”  People v. Whitlock (App. 4 Dist. 2003) 6 Cal.Rptr.3d 389, 113 Cal.App.4th 456, review denied.

Evidence was sufficient to establish that 11-year-old juvenile acted with intent to arouse his sexual desires when he touched vagina of his two-year-old stepsister, and thus to support his adjudication as a ward of the court based on commission of a lewd act upon a child under age of 14; upon initially being confronted by his mother juvenile volunteered that he hoped mother didn’t think he had sexually abused stepsister, juvenile had on prior occasions requested permission to shower with stepsister, incident was done in clandestine manner, and juvenile changed his story many times.  In re Randy S. (App. 4 Dist. 1999) 90 Cal.Rptr.2d 423, 76 Cal.App.4th 400, review denied.

Evidence, of defendant’s guilty pleas to two counts of committing lewd act on child under age 14, involving charges that defendant touched child’s vagina on outside, underneath her panties, and that he forced child to touch his penis, was sufficient to support finding that defendant’s conduct with child involved “substantial sexual conduct” through masturbation for purposes of commitment as sexually violent predator (SVP).  People v. Chambless (App. 4 Dist. 1999) 88 Cal.Rptr.2d 444, 74 Cal.App.4th 773, review denied.

Substantial evidence supported defendant’s conviction for committing lewd act against child, where he placed seven-year-old girl over his knees, pulling her pants down and displaying her bare buttocks to video camera, and where he had earlier allowed children to see his penis protruding from his shorts, showed them pornographic film, and bared his own buttocks for video camera with which children were playing.  People v. Levesque (App. 1 Dist. 1995) 41 Cal.Rptr.2d 439, 35 Cal.App.4th 530, modified on denial of rehearing.

Defendant’s dangling of nine-or-ten-year-old girl’s hair and rubbing of her back was sufficient to support his conviction for lewd and lascivious conduct with child, based on evidence of circumstances surrounding this touching, including evidence that touching occurred after defendant lured girl to secluded spot on pretense of showing her something and later instructed her “not to tell,” as well as on evidence of other acts of similar nature committed by defendant on other young female victims.  People v. Sharp (App. 1 Dist. 1994) 36 Cal.Rptr.2d 117, 29 Cal.App.4th 1772, rehearing denied, review denied, certiorari denied 115 S.Ct. 2006, 514 U.S. 1130, 131 L.Ed.2d 1006, habeas corpus dismissed 2002 WL 202375.

In prosecution for lewd or lascivious acts with child under age 14, jury could rationally infer that defendant committed two or three lewd acts on victims’ bodies, based on evidence that he encouraged two 15-year-old girls to expose their bodies while he filmed them.  People v. Wallace (App. 5 Dist. 1992) 14 Cal.Rptr.2d 67, 11 Cal.App.4th 568.

Testimony of 13 year old complaining witness that defendant started to have an act of sexual intercourse with her but did not finish, but that defendant touched her breasts and private parts sustained conviction for violating this section.  People v. Fredeen (App. 1950) 101 Cal.App.2d 105, 224 P.2d 849.

Evidence that defendant took a female child of the age of seven to his room, there took off her clothing and placed his hands on her private parts, was sufficient to sustain conviction for violation of this section, relating to crimes against children.  People v. Arrangoiz (App. 2 Dist. 1937) 24 Cal.App.2d 116, 74 P.2d 789.

Defendant who pinched breasts of twelve year old girl was guilty of violating this section, making it a felony to commit lewd or lascivious act upon child under age of fourteen.  People v. Epperson (App. 1935) 7 Cal.App.2d 125, 45 P.2d 359.

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23. The Definition of “lust, passion or sexual desires” under PC 288

Any touching of an underage child is “lewd or lascivious” within the meaning of statute criminalizing the commission of a lewd act upon a child under the age of 14 where it is committed for the purpose of sexual arousal.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

For purposes of statute defining offense of committing a lewd act upon a child under the age of 14, a nonforcible lewd and lascivious act, which requires the intent to arouse, appeal to, or gratify the defendant or the minor victim sexually, is considered harmful and offensive because of the special protection the law provides for children from sexual exploitation.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

In sex-crime cases, even where the defendant had but one objective, i.e., sexual gratification, the multiple-punishment statute will not apply unless the crimes were either incidental to or the means by which another crime was accomplished.  People v. Alvarez (App. 4 Dist. 2009) 101 Cal.Rptr.3d 169, 178 Cal.App.4th 999, review denied.

Circumstances relevant to determining whether touching of an underage child was sexually motivated, and thus may constitute crime of commission of a lewd act upon a child under 14 years of age, include the nature of the charged act, physical evidence of sexual arousal, clandestine meetings, the defendant’s extrajudicial statements, other acts of lewd conduct admitted or charged in the case, the relationship of the parties, any coercion, bribery, or deceit used to obtain the victim’s cooperation or to avoid detection, and age of defendant.  In re Randy S. (App. 4 Dist. 1999) 90 Cal.Rptr.2d 423, 76 Cal.App.4th 400, review denied.

Defendant is convicted under statutory provision prohibiting sexually motivated acts that involve touching child in lewd or harmful way for carrying his or her thoughts beyond contemplation and actually using child for purposes of sexual stimulation or gratification.  People v. Levesque (App. 1 Dist. 1995) 41 Cal.Rptr.2d 439, 35 Cal.App.4th 530, modified on denial of rehearing.

Defendant’s “lewd or lascivious act,” and his specific intent of arousing, appealing to, or gratifying passions or sexual desires are separate elements, both of which must be proven in order to support conviction for lewd and lascivious conduct with child.  People v. Sharp (App. 1 Dist. 1994) 36 Cal.Rptr.2d 117, 29 Cal.App.4th 1772, rehearing denied, review denied, certiorari denied 115 S.Ct. 2006, 514 U.S. 1130, 131 L.Ed.2d 1006, habeas corpus dismissed 2002 WL 202375.

Objection to question put to 10-year-old girl, upon whose testimony prosecution of defendant for lewd conduct with child was based, as to whether she had enjoyed what defendant was doing to her was properly sustained, in absence of showing of materiality of question or offer of proof by defendant in connection therewith.  People v. Haxby (App. 2 Dist. 1962) 22 Cal.Rptr. 803, 204 Cal.App.2d 791.

Proof that defendant’s acts were with intent to arouse his own passion would be sufficient to support conviction of offense of lewd conduct with child without showing that lust, passions, or sexual desires of alleged victim were affected.  People v. Shields (App. 2 Dist. 1945) 70 Cal.App.2d 628, 161 P.2d 475.

Under information alleging that defendant committed certain lewd acts upon nine year old girl with intent of arousing, appealing to, and gratifying lust and passions and sexual desires of child “and” defendant, use of word “and” instead of “or,” as in this section did not required proof that acts gratified desires both of child and defendant, since gist of crime is intent with which act is done and not its accomplishment.  People v. Hunt (App. 3 Dist. 1936) 17 Cal.App.2d 284, 61 P.2d 1208.

Where defendant committed lewd acts upon body of 9 year old girl calculated to arouse her sexual passions, but made no attempt to have intercourse, he was guilty of violating this section, punishing such acts when not constituting any other crime provided for in part 2 (amended in 1933 to read part 1) of Penal Code.  People v. Rossi (App. 1918) 37 Cal.App. 778, 174 P. 916.

Lewd and lascivious acts with intent to arouse passion are none the less within condemnation of this section, because of intent from the beginning to have intercourse, later accomplished.  People v. Rossi (App. 1918) 37 Cal.App. 778, 174 P. 916.

In prosecution under this section, for lewd and lascivious conduct with boy under 14, expert medical evidence as to what effect such acts would have in “arousing the feelings or gratifying the lust or passions of sexual desires of the man in the case” was properly admitted.  People v. Camp (App. 1915) 26 Cal.App. 385, 147 P. 95.

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24. Age of the Victim under PC 288

Lack of consent by the child victim is not an element of either lewd acts on a child under age 14, or aggravated lewd acts on a child under age 14.  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

In prosecution for committing a lewd act upon a child under the age of 14, the trier of fact must find a union of act and sexual intent and such intent must be inferred from all the circumstances beyond a reasonable doubt.  People v. Lopez (App. 4 Dist. 2010) 111 Cal.Rptr.3d 232, 185 Cal.App.4th 1220, review denied.

Extended limitations period applied to defendant’s prosecution for lewd acts, where victim was under the age of 18 when acts were committed, offenses involved substantial sexual conduct, including oral copulation and anal sex, and independent evidence convincingly corroborated victim’s report.  People v. Delgado (App. 4 Dist. 2010) 104 Cal.Rptr.3d 495, 181 Cal.App.4th 839, review denied.

Standing alone, victim’s youth was not an appropriate aggravating factor, when deciding whether to impose consecutive sentence for the offense of forcible lewd acts upon a child under 14 years of age, which was committed on same occasion and against same victim as an aggravated sexual assault, since victim’s youth was an element of the crime; victim was 13 years old at the time of the offense.  People v. Quintanilla (App. 2 Dist. 2009) 87 Cal.Rptr.3d 889, 170 Cal.App.4th 406, review denied, habeas corpus denied 2010 WL 4220568.

Victim’s vulnerability and defendant’s abuse of trust were proper aggravating factors for the trial court to rely upon in imposing a full consecutive low term for the offense of forcible lewd acts upon child under 14 years of age, which was committed on same occasion and against same victim as an aggravated sexual assault, where defendant exploited the cordial relationship he had built up over years as a friendly neighbor and father of victim’s friend in making his initial approach to victim in the parking garage of their apartment building.  People v. Quintanilla (App. 2 Dist. 2009) 87 Cal.Rptr.3d 889, 170 Cal.App.4th 406, review denied, habeas corpus denied 2010 WL 4220568.

Defendant could not challenge conviction for committing lewd or lascivious acts upon 14-year-old on a theory of moral innocence; facts established at trial would, at most, support a reasonable belief on defendant’s part that victim was age 16, and lewd acts with a 16-year-old victim would still have violated provisions that prohibited annoying or molesting a child under 18 and contributing to delinquency of a child under 18.  People v. Paz (App. 5 Dist. 2000) 95 Cal.Rptr.2d 166, 80 Cal.App.4th 293.

Reasonable mistake about victim’s age is not a defense to a charge of lewd or lascivious acts committed upon a 14- or 15-year-old victim by a defendant at least ten years older.  People v. Paz (App. 5 Dist. 2000) 95 Cal.Rptr.2d 166, 80 Cal.App.4th 293.

Reasonable, good-faith mistake of fact as to age of victim was not defense to charge against juvenile for lewd lascivious acts upon child under age of 14.  In re Donald R. (App. 4 Dist. 1993) 18 Cal.Rptr.2d 442, 14 Cal.App.4th 1627.

Victim’s testimony at trial that incident in which defendant played pornographic videotape and had victim masturbate him occurred before her 14th birthday was sufficient evidence to support conviction of committing lewd act on child under 14, even though victim had earlier given testimony fixing date of incident as after her 14th birthday.  People v. Cantrell (App. 1 Dist. 1992) 9 Cal.Rptr.2d 188, 7 Cal.App.4th 523, rehearing denied, review denied.

A reasonable mistake as to the victim’s age is not a defense to a charge of lewd or lascivious conduct with a child under the age of 14 years.  People v. Olsen (1984) 205 Cal.Rptr. 492, 36 Cal.3d 638, 685 P.2d 52.

Good-faith reasonable belief that victim was age of 14 years or over was not defense in prosecution for committing lewd and lascivious acts upon child under age of 14 years.  People v. Gutierrez (App. 2 Dist. 1978) 145 Cal.Rptr. 823, 80 Cal.App.3d 829.

In prosecution for lewd and lascivious conduct with child, victims’ voir dire testimony as to their ages was competent to establish necessary element of age where victims were sworn before voir dire and no instruction limiting effect of voir dire testimony was sought.  People v. Nugent (App. 1 Dist. 1971) 96 Cal.Rptr. 209, 18 Cal.App.3d 911.

In cases of sex crimes committed on children, the age of the child may be established by the child’s testimony.  People v. Crownover (App. 1 Dist. 1939) 34 Cal.App.2d 7, 92 P.2d 929.

Where, in prosecution for violation of this section, concerning crimes against children, jury, in exercise of their province as judges of testimony and of weight to be given thereto, accepted as true the complaining witness’ testimony that he was 13 years old, the jury’s decision on such question was controlling on appeal.  People v. Crownover (App. 1 Dist. 1939) 34 Cal.App.2d 7, 92 P.2d 929.

It is essential to conviction for lewd acts upon a child under this section, that the child attacked was under the age of 14 years, and that fact must be established by evidence, the jury not being permitted to guess it from the appearance of the child on the witness stand, especially where the court did not instruct them they must find that fact.  People v. Levoy (App. 1 Dist. 1920) 49 Cal.App. 770, 194 P. 524.

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25. Jury Instructions Related to Age of the Victim

Jury instruction describing the offense of lewd and lascivious acts on a child under the age of 14 for purposes of the continuous sexual abuse statute satisfies the requirement that the touching must be accompanied by the intent for “sexual gratification,” by stating the willful touching must be “accomplished with the intent to sexually arouse the perpetrator or the child.”  People v. Sigala (App. 2 Dist. 2011) 119 Cal.Rptr.3d 674, 191 Cal.App.4th 695, review denied.

In view of fact that no distinction is made between competence of young children and that of other witnesses, trial court did not err when, in prosecution of father for committing lewd and lascivious acts with his daughter and stepdaughter, it refused father’s proffered instruction warning jury that it should examine testimony of children of tender years with caution.  People v. Thomas (1978) 143 Cal.Rptr. 215, 20 Cal.3d 457, 573 P.2d 433.

Where trial court properly found that seven year old daughter was competent to testify in prosecution of father for violations of this section and § 288a, court did not err in failing to instruct jury that jury should view testimony of daughter with caution because child her age might not be able to perceive the facts or relate them accurately, in view of instructions given.  People v. Trolinder (App. 1 Dist. 1953) 121 Cal.App.2d 819, 264 P.2d 601.

In prosecution for lewd and lascivious conduct against child under 14 years of age, refusal of court to give requested instruction that testimony of eight year old prosecuting witness should be viewed with greatest of caution and that if witness appeared incapable of relating facts truly, her testimony should be disregarded, was not error in view of fact that competency of prosecuting witness was question for determination of trial judge.  People v. Romersa (App. 2 Dist. 1952) 111 Cal.App.2d 173, 244 P.2d 98.

In a prosecution for lewd and lascivious conduct, an instruction that it is not essential to a conviction that the prosecutrix be corroborated in the testimony of other witnesses as to the particular acts constituting the offense was not erroneous for failure to include instruction that testimony of the prosecutrix, a child of tender years, should be viewed with great caution, in the absence of a request for an instruction on that point.  People v. Knight (App. 2 Dist. 1923) 63 Cal.App. 63, 218 P. 79.

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26. Age of the defendant charged with PC 288 offense

Statute proscribing lewd touching of victim under 14 years of age is violated even if perpetrator is younger than victim.  In re Jerry M. (App. 4 Dist. 1997) 69 Cal.Rptr.2d 148, 59 Cal.App.4th 289.

Minor’s knowledge of wrongfulness of acts may be inferred, in juvenile proceeding arising from minor’s commission of lewd or lascivious act upon child, from circumstances such as method of committing acts or acts’ concealment.  In re Paul C. (App. 3 Dist. 1990) 270 Cal.Rptr. 369, 221 Cal.App.3d 43, review denied.

Finding that 13-year-old child had appreciated wrongfulness of acts, when he allegedly asked younger child to perform oral sex upon him, was sufficiently supported by evidence presented in juvenile proceeding, including evidence that 13-year-old had asked younger child to meet him behind bushes to perform sex act and had initially denied that act occurred when questioned by police officers.  In re Paul C. (App. 3 Dist. 1990) 270 Cal.Rptr. 369, 221 Cal.App.3d 43, review denied.

In deciding whether minor is capable of committing lewd or lascivious act on child under 14 years of age, within meaning of this section, juvenile court must consider minor’s age, experience, and understanding.  In re Paul C. (App. 3 Dist. 1990) 270 Cal.Rptr. 369, 221 Cal.App.3d 43, review denied.

Minor under 14 years of age may be adjudged responsible for committing lewd or lascivious act with other child under 14 years old, or for participating in oral copulation with person under age of 18, upon clear proof of minor’s knowledge of wrongfulness of acts along with evidence of criminal intent under charged offenses.  In re Paul C. (App. 3 Dist. 1990) 270 Cal.Rptr. 369, 221 Cal.App.3d 43, review denied.

This section could be applied to offense allegedly committed by juvenile who was less than 14 years old, where victim did not consent to alleged act and was seven years younger than juvenile.  In re Billie Y. (App. 5 Dist. 1990) 269 Cal.Rptr. 212, 220 Cal.App.3d 127, review denied.

Minor age 14 or older violates this section when he engages in sexual contact with willing partner who is under 14 years of age.  In re John L. (App. 5 Dist. 1989) 257 Cal.Rptr. 682, 209 Cal.App.3d 1137.

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27. The definition of “force” under PC 288

A conviction under California law for lewd or lascivious acts on a child of 14 or 15 years by a person at least ten years older than the child categorically does not constitute “sexual abuse of a minor” and therefore does not qualify as a prior conviction for a crime of violence, for purposes of a 16-level sentencing guidelines offense level increase in a defendant’s offense level.  U.S. v. Castro, C.A.9 (Cal.)2010, 607 F.3d 566.

For a conviction of aggravated lewd acts on child under 14, the force used must be “substantially different from or substantially greater than that necessary to accomplish the lewd act itself.”  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

The “force or fear” element of committing lewd or lascivious act on a child is intended as a requirement that the lewd act be undertaken without the consent of the victim.  People v. Perez (App. 6 Dist. 2010) 105 Cal.Rptr.3d 749, 182 Cal.App.4th 231, review denied.

To convict for committing a forcible lewd act against a child under the age of 14 years, the prosecution must prove that the defendant used physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself.  In re Asencio (App. 2 Dist. 2008) 83 Cal.Rptr.3d 400, 166 Cal.App.4th 1195, review denied.

“Force” as used in context of offenses of aggravated sexual assault and forcible lewd acts on child under age of 14 years, means physical force substantially different from or substantially greater than that necessary to accomplish lewd act itself.  People v. Cochran (App. 4 Dist. 2002) 126 Cal.Rptr.2d 416, 103 Cal.App.4th 8, habeas corpus dismissed 2007 WL 2481456.

Defendant’s acts of overcoming minor victim’s resistance to having his pants pulled down, bending victim over, and pulling victim’s waist toward defendant constituted “force” within meaning of statute making it a crime to use force in committing lewd or lascivious acts with child under age of 14.  People v. Bolander (App. 6 Dist. 1994) 28 Cal.Rptr.2d 365, 23 Cal.App.4th 155, as modified, review denied.

To establish “force” within meaning of statute making it a crime to use force to commit lewd or lascivious acts with child under age of 14, prosecution must show defendant used physical force substantially different from or substantially greater than that necessary to accomplish lewd act itself.  People v. Bolander (App. 6 Dist. 1994) 28 Cal.Rptr.2d 365, 23 Cal.App.4th 155, as modified, review denied.

Under statute proscribing lewd or lascivious acts with child under age of 14 by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on victim or another person, element of force, violence, duress, menace, or fear of immediate and unlawful bodily injury is intended as requirement that lewd act be undertaken without consent of victim.  People v. Neel (App. 3 Dist. 1993) 24 Cal.Rptr.2d 293, 19 Cal.App.4th 1784, review denied.

“Force” contemplated by statute criminalizing lewd and lascivious acts on child under age of 14 years by use of “force” is physical force substantially different from or substantially in excess of that required for lewd act.  People v. Babcock (App. 1 Dist. 1993) 17 Cal.Rptr.2d 688, 14 Cal.App.4th 383, review denied, habeas corpus dismissed 1997 WL 724450.

Although resistance by victim was not required to prove forcible lewd and lascivious conduct, jury reasonably could have considered minor’s resistance in assessing whether defendant used force to accomplish lewd act.  People v. Babcock (App. 1 Dist. 1993) 17 Cal.Rptr.2d 688, 14 Cal.App.4th 383, review denied, habeas corpus dismissed 1997 WL 724450.

Force required for conviction of sexual molestation involving lewd or lascivious touching by use of force means physical force substantially different from or substantially in excess of that required for lewd act;  since ordinary lewd touching often involves some additional physical contact, modicum of holding and even restraining cannot be regarded as substantially different or excessive “force.”  People v. Schulz (App. 6 Dist. 1992) 3 Cal.Rptr.2d 799, 2 Cal.App.4th 999, review denied.

Although prior forcible molestation counts might be sufficient to show that later acts without force were accomplished by means of duress, such prior conduct cannot be used to show that later incidents were accomplished by force.  People v. Hecker (App. 4 Dist. 1990) 268 Cal.Rptr. 884, 219 Cal.App.3d 1238, review denied.

Conviction for molesting child under age of 14 with force requires showing that defendant used physical force substantially different from or substantially in excess of that required for lewd act, but does not require showing that force overcame will of victim.  People v. Quinones (App. 6 Dist. 1988) 249 Cal.Rptr. 435, 202 Cal.App.3d 1154, review denied.

Error in instructing jury that force, violence, duress, or menace element of offenses of forcible lewd conduct with child could be established by evidence of psychological coercion alone was harmless, where there was unequivocal evidence of application of physical force during offenses of which defendant was convicted;  there was no reasonable probability defendant would have obtained more favorable result had there been no misinstruction.  People v. Mendibles (App. 2 Dist. 1988) 245 Cal.Rptr. 553, 199 Cal.App.3d 1277, review denied.

Lewd and lascivious conduct was a lesser or necessarily included offense of forcible lewd and lascivious conduct, so that defendant could not be convicted of both lewd and lascivious conduct and forcible lewd and lascivious conduct for same act of intercourse with 14-year-old stepdaughter, and thus, in view of the fact that defendant did not challenge sufficiency of evidence to support forcible lewd and lascivious conduct charge, lesser included offense convictions for lewd conduct required reversal.  People v. Ward (App. 5 Dist. 1986) 233 Cal.Rptr. 477, 188 Cal.App.3d 459.

“Force” as used in Penal Code § 288(b), making the commission of a lewd and lascivious act with a child under 14 years of age by means of “force” a felony, means physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself;  such definition applies to all cases not yet final as of June 21, 1984.  People v. Pitmon (App. 3 Dist. 1985) 216 Cal.Rptr. 221, 170 Cal.App.3d 38, review denied.

Word “force” in this section refers to a method of obtaining a child’s participation in a lewd act in violation of a child’s will, and not exclusively as a means of causing physical harm to the child.  People v. Cicero (App. 3 Dist. 1984) 204 Cal.Rptr. 582, 157 Cal.App.3d 465.

Testimony that defendant, being prosecuted for violation of this section, drank heavily and beat and threatened members of his family was relevant to support witnesses’ testimony that defendant had forced them to submit to his sexual demands, and as it was unobjected to at trial, it could not be challenged on appeal.  People v. Pierce (App. 3 Dist. 1969) 75 Cal.Rptr. 257, 269 Cal.App.2d 193.

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28. The Use of Drugs as Force under PC 288

Preventing resistance by causing victim to be drugged constitutes use of force within meaning of West’s Ann.Cal.Penal Code § 288(b) prohibiting the use of force to commit lewd or lascivious acts with child under age 14.  People v. Lusk (App. 4 Dist. 1985) 216 Cal.Rptr. 544, 170 Cal.App.3d 764, review denied.

In prosecution for lewd and lascivious conduct with children, where it was established that defendant served one of the children wine in glass, exhibition to the jury of the wine jug from which wine was poured, although not introduced in evidence, was not prejudicial to defendant, since jug would be admissible in evidence.  People v. Owen (App. 1 Dist. 1945) 68 Cal.App.2d 617, 157 P.2d 432.

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29. The Need for Sufficient Evidence to show force under PC 288

Generally, whether a course of conduct is a divisible transaction under the multiple-punishments statute depends on the intent and objective of the actor: if all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.  People v. Alvarez (App. 4 Dist. 2009) 101 Cal.Rptr.3d 169, 178 Cal.App.4th 999, review denied.

There was sufficient evidence of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” to support defendant’s convictions for sexual offenses, despite his claim that he had, at most, fraudulently obtained consent of victims, who believed he was holy man;  victims’ initial consent was only to submit to “treatment” of illnesses, not to specific acts he performed on them and, moreover, he imposed psychological and physical deprivations upon victims to coerce them to submit to treatments against their will, trading upon their strongly held religious beliefs.  People v. Cardenas (App. 2 Dist. 1994) 26 Cal.Rptr.2d 567, 21 Cal.App.4th 927, review denied.

Defendant’s acts of forcing victim’s head down on defendant’s penis when she tried to pull away, and grabbing her wrist, placing her hand on his penis, and then “making it go up and down,” were “force,” for purposes of prosecution for lewd or lascivious act with child under age of 14 by use of force.  People v. Neel (App. 3 Dist. 1993) 24 Cal.Rptr.2d 293, 19 Cal.App.4th 1784, review denied.

Defendant’s convictions on two counts of forcible lewd and lascivious conduct against minors were supported by substantial evidence of defendant’s use of force, where evidence demonstrated that defendant grabbed minors’ hands and forced them to touch his genitals, and evidence indicted that defendant overcame one minor’s resistance when she attempted to pull her hand away from his crotch;  defendant’s grabbing of victims’ hands and overcoming one minor’s resistance were not necessarily elements of lewd acts of touching defendant’s crotch.  People v. Babcock (App. 1 Dist. 1993) 17 Cal.Rptr.2d 688, 14 Cal.App.4th 383, review denied, habeas corpus dismissed 1997 WL 724450.

Defendant’s holding of victim who is trying to escape is not necessarily element of lewd act of touching victim’s vagina and breasts, and, thus, such holding may provide evidence of defendant’s use of force in trial for forcible lewd and lascivious conduct.  People v. Babcock (App. 1 Dist. 1993) 17 Cal.Rptr.2d 688, 14 Cal.App.4th 383, review denied, habeas corpus dismissed 1997 WL 724450.

Defendant’s pulling of victim back as she tries to get away is not necessarily an element of oral copulation and, thus, such pulling may provide evidence of defendant’s use of force in trial for forcible lewd and lascivious conduct.  People v. Babcock (App. 1 Dist. 1993) 17 Cal.Rptr.2d 688, 14 Cal.App.4th 383, review denied, habeas corpus dismissed 1997 WL 724450.

Whether defendant used physical force substantially different from or substantially in excess of that required for lewd act is properly left as issue for jury to resolve in trial for forcible lewd and lascivious conduct.  People v. Babcock (App. 1 Dist. 1993) 17 Cal.Rptr.2d 688, 14 Cal.App.4th 383, review denied, habeas corpus dismissed 1997 WL 724450.

Evidence that, when 15 or 16, defendant invited young neighbor girl into his bedroom, shut the door, told her to undress from the waist down, undressed himself, took her hand and touched his penis, and then pushed her out the window when his mother came home and threatened to beat her up if she said anything about the incident was sufficient to show forcible lewd act, so as to make evidence of the incident admissible in subsequent prosecution for capital murder as evidence of a criminal act involving the use or attempted use of force or violence or the threat of force or violence.  People v. Raley (1992) 8 Cal.Rptr.2d 678, 2 Cal.4th 870, 830 P.2d 712, modified on denial of rehearing, certiorari denied 113 S.Ct. 1352, 507 U.S. 945, 122 L.Ed.2d 733, stay granted.

Although there was no indication that defendant directly threatened violence against victims of child sexual abuse, there was sufficient implied threat to support entry of no contest plea to charges of lewd conduct by force or duress;  defendant occupied position of authority as to each victim, victims were under age of ten when molestation started, crimes occurred against background of defendant’s drinking and violence, and there was implied threat of harm if victims refused advances.  People v. Wilkerson (App. 5 Dist. 1992) 8 Cal.Rptr.2d 392, 6 Cal.App.4th 1571.

Evidence supported conviction of forcibly committing lewd and lascivious acts upon child under age 14, where victim testified that defendant’s forearm was over her mouth rendering her unable to cry out during assault, and that in response to her attempt to move defendant pushed her back.  People v. Gilbert (App. 6 Dist. 1992) 7 Cal.Rptr.2d 660, 5 Cal.App.4th 1372, review denied.

Evidence was insufficient to establish that defendant used force in committing charged molestation of stepdaughter, who was under 14, thus precluding convictions of committing lewd or lascivious acts with minor under age 14 by means of force, and permitting conviction only of committing lewd or lascivious acts with minor;  even if medical evidence established physical injury, there was no evidence tying physical injury to incident in question, and minor’s only testimony of physical force was that defendant had pushed her head down during prior act of oral copulation.  People v. Hecker (App. 4 Dist. 1990) 268 Cal.Rptr. 884, 219 Cal.App.3d 1238, review denied.

Requisite showing of force in sexual molestation case involving child was made when nine-year-old boy testified that his uncle laid down on top of him so that he could not move while fondling victim’s genitals, and testimony was corroborated by eyewitness testimony of his sister.  People v. Stark (App. 4 Dist. 1989) 261 Cal.Rptr. 479, 213 Cal.App.3d 107.

In prosecution of defendant for committing a lewd act with a child under 14 years of age by means of force or duress, under Penal Code § 288(b), evidence that defendant manipulated or held eight-year-old’s hand throughout the act was sufficient to establish the use of “force,” notwithstanding child’s denials during examination by the court that defendant used force or violence.  People v. Pitmon (App. 3 Dist. 1985) 216 Cal.Rptr. 221, 170 Cal.App.3d 38, review denied.

If defendant physically pushed child while holding open knife and compelled her to travel some 60 to 70 feet to orange grove after declaring a portion of his lustful desires, implying that he wanted child’s privates exposed, and if defendant’s actions were done for purpose of some immediate sexual gratification, defendant could be convicted of lewd act upon or with child.  People v. Austin (App. 5 Dist. 1980) 168 Cal.Rptr. 401, 111 Cal.App.3d 110.

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30. The definition of “duress” under PC 288

A perpetrator may use duress, menace, or threats against a victim, as would support a conviction of aggravated lewd acts on a child under 14, even if this conduct does not ultimately influence the victim’s state of mind.  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

The legal definition of duress, as would support a conviction of aggravated lewd acts on a child under 14, is objective in nature and not dependent on the response exhibited by a particular victim.  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

“Duress,” as would support a conviction of aggravated lewd acts on a child under 14, means the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do or submit to something that he or she would not otherwise do or submit to.  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

When deciding whether a lewd act was accomplished by duress, as would support a conviction of aggravated lewd acts on a child under 14, jurors should consider all the circumstances, including the age of the child and his or her relationship to the defendant.  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

“Duress,” under statute defining offense of committing a lewd or lascivious act on a child by force or fear, includes a direct or implied threat of hardship or retribution sufficient to coerce a reasonable person of ordinarily sensibilities to perform an act which otherwise would not have been performed.  People v. Perez (App. 6 Dist. 2010) 105 Cal.Rptr.3d 749, 182 Cal.App.4th 231, review denied.

Factors to be considered in appraising the existence of duress, for purposes of offense of lewd and lascivious acts upon a child under the age of 14 years by force or duress, are the total circumstances, including the age of the victim and her relationship to defendant, threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family.  People v. Veale (App. 4 Dist. 2008) 72 Cal.Rptr.3d 360, 160 Cal.App.4th 40, review denied.

“Duress” as a defense to a criminal charge carries a different meaning from “duress” as used in statute prohibiting lewd conduct with child.  People v. Leal (2004) 16 Cal.Rptr.3d 869, 33 Cal.4th 999, 94 P.3d 1071.

Term “duress” in statute that makes it a felony to commit a lewd act on a child includes threat of hardship, notwithstanding amendments to rape and spousal rape statutes to delete term “hardship” from definition of “duress”; amendments were limited to rape statutes and were not intended to alter longstanding construction of “duress” in lewd acts statute; disapproving , 93 Cal.App.4th 1241, 113 Cal.Rptr.2d 748.  People v. Leal (2004) 16 Cal.Rptr.3d 869, 33 Cal.4th 999, 94 P.3d 1071.

“Duress,” as used in context of offenses of aggravated sexual assault and forcible lewd acts on child under age of 14 years, means direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce reasonable person of ordinary susceptibilities to (1) perform act which otherwise would not have been performed or, (2) acquiesce in act to which one otherwise would not have submitted.  People v. Cochran (App. 4 Dist. 2002) 126 Cal.Rptr.2d 416, 103 Cal.App.4th 8, habeas corpus dismissed 2007 WL 2481456.

Total circumstances, including age of victim and relationship to defendant, are factors to be considered in appraising existence of duress, for purposes of offenses of aggravated sexual assault and forcible lewd acts on child under age of 14 years; other relevant factors include threats to harm victim, physically controlling victim when victim attempts to resist, and warnings to victim that revealing molestation would result in jeopardizing family.  People v. Cochran (App. 4 Dist. 2002) 126 Cal.Rptr.2d 416, 103 Cal.App.4th 8, habeas corpus dismissed 2007 WL 2481456.

Fact that victim testifies defendant did not use force or threats does not require finding of no duress in prosecution for offenses of aggravated sexual assault and forcible lewd acts on child under age of 14 years; victim’s testimony must be considered in light of her age and her relationship to defendant.  People v. Cochran (App. 4 Dist. 2002) 126 Cal.Rptr.2d 416, 103 Cal.App.4th 8, habeas corpus dismissed 2007 WL 2481456.

Duress, as an element of forcible lewd conduct on a child or attempted rape, cannot be established as an element of an offense unless there is evidence that the victim’s participation was impelled, at least partly, by an implied threat.  People v. Espinoza (App. 6 Dist. 2002) 116 Cal.Rptr.2d 700, 95 Cal.App.4th 1287, review denied.

Evidence was insufficient to support finding that defendant used duress on victim, as required to convict defendant of forcible lewd conduct on a child and attempted forcible rape, even though defendant was the victim’s father and was larger than victim, and even though victim felt fear and may have had a limited intellectual level; there was no evidence that defendant used a direct or implied threat of force, violence, or danger to compel participation by victim.  People v. Espinoza (App. 6 Dist. 2002) 116 Cal.Rptr.2d 700, 95 Cal.App.4th 1287, review denied.

Even unreasonable fear of immediately bodily injury may suffice for purposes of statutes requiring proof of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or other person” in order to establish sexual offenses if accused knowingly takes advantage of that fear in order to accomplish offense.  People v. Cardenas (App. 2 Dist. 1994) 26 Cal.Rptr.2d 567, 21 Cal.App.4th 927, review denied.

Physical control can create “duress” without constituting “force,” for purposes of sexual molestation involving lewd or lascivious touching by use of force or duress;  “duress” can arise from various circumstances, including relationship between defendant and victim and their relative ages and sizes.  People v. Schulz (App. 6 Dist. 1992) 3 Cal.Rptr.2d 799, 2 Cal.App.4th 999, review denied.

There was sufficient evidence of duress to support defendant’s conviction of child molestation involving lewd or lascivious touching by use of duress, where nine-year-old victim was crying while defendant, her adult uncle, restrained and fondled her;  defendant took advantage not only of his psychological dominance as adult authority figure, but also of his physical dominance to overcome victim’s resistance to molestation.  People v. Schulz (App. 6 Dist. 1992) 3 Cal.Rptr.2d 799, 2 Cal.App.4th 999, review denied.

Evidence, including testimony by defendant’s stepdaughter that only use of physical force by defendant was his pushing her head down during oral copulation, was insufficient to establish duress with regard to subsequent incident of anal and vaginal intercourse, thus precluding finding of use of force in committing lewd and lascivious acts with minor under age 14;  stepdaughter admitted she was never consciously afraid that defendant would harm her.  People v. Hecker (App. 4 Dist. 1990) 268 Cal.Rptr. 884, 219 Cal.App.3d 1238, review denied.

Alleged conduct of defendant in urging stepdaughter not to disclose molestations because it would ruin his marriage and his naval career merely tended to show threat of hardship directed at later disclosure of sex acts, not at failure to perform sex acts themselves, and could not be “duress” for purpose of conviction of committing lewd and lascivious acts with minor under age 14 by use of force.  People v. Hecker (App. 4 Dist. 1990) 268 Cal.Rptr. 884, 219 Cal.App.3d 1238, review denied.

Evidence of duress was sufficient to bind defendant over for trial on charge of committing lewd or lascivious acts with child under age of 14 by use of duress;  long-standing relationship of trust had developed between defendant and child victim, who frequently visited defendant’s home and played with his sons, alleged acts took place in isolated room out of presence of other adults, defendant allegedly threatened child with humiliation and shame if he did not cooperate, and child testified that on one occasion defendant stated that child would be spanked with belt if he did not cooperate.  People v. Superior Court (Kneip) (App. 6 Dist. 1990) 268 Cal.Rptr. 1, 219 Cal.App.3d 235.

 

Duress which may establish offense of committing lewd or lascivious acts with child under 14 by use of duress is a factual question, and is therefore for jury to determine, after considering all circumstances.  People v. Superior Court (Kneip) (App. 6 Dist. 1990) 268 Cal.Rptr. 1, 219 Cal.App.3d 235.

Evidence of defendant’s status as a father figure in the mind of his granddaughter, his repeated threats that the granddaughter’s mother would hit her if she told anyone, and evidence of the nature of the defendant’s acts of physically pulling the granddaughter and requiring her to perform the acts supported convictions for child molestation by duress.  People v. Sanchez (App. 4 Dist. 1989) 256 Cal.Rptr. 446, 208 Cal.App.3d 721, review denied, certiorari denied 110 S.Ct. 286, 493 U.S. 921, 107 L.Ed.2d 266.

In prosecution for commission of lewd acts upon a child under 14 years of age by means of duress, under Penal Code § 288(b), disparity in physical size between eight-year-old victim and defendant, fact that defendant was a stranger whom child encountered in an isolated location, and evidence that defendant physically restrained child was sufficient to support finding of “duress.”  People v. Pitmon (App. 3 Dist. 1985) 216 Cal.Rptr. 221, 170 Cal.App.3d 38, review denied.

In prosecution for commission of a lewd act on a child under 14 years of age by use of force or duress, under Penal Code § 288(b), trial court was not required sua sponte to instruct as to the meaning of “duress,” in light of the fact that it has no technical meaning and can be commonly understood.  People v. Pitmon (App. 3 Dist. 1985) 216 Cal.Rptr. 221, 170 Cal.App.3d 38, review denied.

Defendant’s prior California conviction for lewd and lascivious acts upon a child under age 14 constituted conviction for “crime of violence” under Sentencing Guidelines section providing for 16-level increase in his offense level for his subsequent conviction for attempted reentry into United States after deportation.  U.S. v. Abarca, C.A.9 (Cal.)2009, 357 Fed.Appx. 746, 2009 WL 3416132, Unreported.

“Psychological coercion” without more does not establish “duress,” for purposes of conviction of committing lewd and lascivious acts with minor under 14 by use of force;  at minimum there must be implied threat of force, violence, danger, hardship, or retribution.  People v. Hecker (App. 4 Dist. 1990) 268 Cal.Rptr. 884, 219 Cal.App.3d 1238, review denied.

Defendant need not have exercised some physical coercion on victims in order to be charged with committing lewd or lascivious acts with child under 14 by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury;  coercion can be implied from circumstances and psychological pressure.  People v. Superior Court (Kneip) (App. 6 Dist. 1990) 268 Cal.Rptr. 1, 219 Cal.App.3d 235.

In determining existence of “duress,” “force” or “fear,” for purposes of statutes requiring proof of such elements to establish sexual offenses, factors such as position of dominance and authority of defendant and his continuous exploitations of victim may be considered.  People v. Cardenas (App. 2 Dist. 1994) 26 Cal.Rptr.2d 567, 21 Cal.App.4th 927, review denied.

 

Permitting prosecutor, in prosecution for violation of this section, to require defendant, on cross-examination, to read aloud passages from books that had been taken from his library was not prejudicial error in that such cross-examination elicited from defendant matter which tended to overcome effect of his testimony on direct examination that he at no time discussed sex with prosecutrix and intended to corroborate her testimony that she learned about deviate sexual behavior from defendant.  People v. Wrigley (1968) 70 Cal.Rptr. 116, 69 Cal.2d 149, 443 P.2d 580.

In prosecution for statutory rape, lewd or lascivious acts with infant females and sex perversion, cross-examination of defendant’s daughter as to whether she had had sexual relations with infants’ father was not proper for purpose of impeaching credibility of her testimony as to defendant’s attempts to have sexual intercourse with her.  People v. Whalen (App. 2 Dist. 1945) 70 Cal.App.2d 142, 160 P.2d 560.

In prosecution for lewd and lascivious act upon body of child, under this section, excluding evidence relative to marital troubles of defendant and his wife, was proper where defendant did not state that purpose of evidence was to show that charge originated with wife because of her hostility, child being her sister.  People v. Reyes (1924) 194 Cal. 650, 229 P. 947.

In a prosecution for abusing a female child eight years of age, her evidence that defendant met her for the first time on a sidewalk near a roller coaster at an amusement park, gave her oranges and a sandwich, and told her to go down under the coaster, and that he would meet her there, that she did as requested, and that defendant shortly after joined her, but that she could not remember whether defendant put his hands on her, or what he did while they were down under the coaster, was admissible to show that the defendant and the witness prior to the meeting were strangers.  People v. Barlow (App. 1911) 17 Cal.App. 375, 119 P. 940.

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31. Consent is not a defense to PC 288

A child’s apparent consent to a sexually motivated touching, which is irrelevant to a charge of lewd acts on a child under 14, would also be ineffective as a defense to a charge of battery.  People v. Gray (App. 2 Dist. 2011) 131 Cal.Rptr.3d 674, 199 Cal.App.4th 167, review granted and opinion superseded 133 Cal.Rptr.3d 855, 264 P.3d 821.

Consent, or the lack of consent, by the victim is irrelevant to a charge of lewd acts on a child, as the statute merely implements a public policy making the described acts criminal without regard to such consent.  People v. Gray (App. 2 Dist. 2011) 131 Cal.Rptr.3d 674, 199 Cal.App.4th 167, review granted and opinion superseded 133 Cal.Rptr.3d 855, 264 P.3d 821.

The victim’s consent is not a defense to the crime of lewd acts on a child under age 14 “by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim”; disapproving , 157 Cal.App.3d 465, 204 Cal.Rptr. 582, 103 Cal.App.4th 8, 126 Cal.Rptr.2d 416, , 23 Cal.App.4th 155, 28 Cal.Rptr.2d 365; , 19 Cal.App.4th 1784, 24 Cal.Rptr.2d 293, , 219 Cal.App.3d 1238, 268 Cal.Rptr. 884, , 202 Cal.App.3d 1154, 249 Cal.Rptr. 435, , 199 Cal.App.3d 1277, 245 Cal.Rptr. 553, , 170 Cal.App.3d 764, 216 Cal.Rptr. 544, and , 170 Cal.App.3d 38, 216 Cal.Rptr. 221.  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

Willingness by the child is not a defense to either lewd acts on a child under age 14, or aggravated lewd acts on a child under age 14.  People v. Soto (2011) 119 Cal.Rptr.3d 775, 51 Cal.4th 229, 245 P.3d 410, certiorari denied 131 S.Ct. 2941, 180 L.Ed.2d 233.

The concept of consent, whether legal or actual, is irrelevant to the determination of whether statutes criminalizing unlawful sexual intercourse with a person under 18, lewd and lascivious acts, oral copulation with a minor, and penetration of a minor by foreign or unknown object have been violated.  People v. Hillhouse (App. 4 Dist. 2003) 1 Cal.Rptr.3d 261, 109 Cal.App.4th 1612, review denied.

Consent, or reasonable good faith belief in age of child to give consent, are not defenses to crimes charged under statute prohibiting lewd and lascivious acts with child under age 14 and, thus, consent is not issue whether it be fraudulently obtained or freely given.  People v. Cardenas (App. 2 Dist. 1994) 26 Cal.Rptr.2d 567, 21 Cal.App.4th 927, review denied.

Consent is not element of offense of committing lewd or lascivious acts upon body of child under 14, and instruction to that effect was appropriate, despite contention that record was devoid of evidence of consent, where there was no evidence that child had protested.  People v. Dontanville (App. 2 Dist. 1970) 89 Cal.Rptr. 172, 10 Cal.App.3d 783.

Violation of this section prohibiting lewd and lascivious conduct on child under 14 years does not involve consent of any sort, thereby placing public policies underlying it and statutory rape on different footings.  People v. Toliver (App. 3 Dist. 1969) 75 Cal.Rptr. 819, 270 Cal.App.2d 492, certiorari denied 90 S.Ct. 193, 396 U.S. 895, 24 L.Ed.2d 172.

Instruction that whether children consented to conduct of defendant was immaterial except as tending to show a circumstance in the whole set of circumstances to be considered in determining innocence or guilt of defendant of a violation of this section was not error on ground that want of consent was highly material in determining specific intent of defendant, where instruction was given which defined offense in language of the statute.  People v. Simcich (App. 1949) 91 Cal.App.2d 524, 205 P.2d 54.

Consent is not involved in prosecution for lewd acts with child, and testimony is inadmissible to show it.  People v. Russell (App. 1 Dist. 1926) 80 Cal.App. 243, 251 P. 699.

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32. Penetration and Emission When Committing a PC 288 Offense

Evidence of penetration was not required to support defendant’s conviction for committing a lewd act upon a child under the age of 14 years; defendant’s placement of his erect and exposed penis on six-year-old child’s vagina with the specific intent to arouse, appeal to, or gratify his or her sexual desires was more than enough to establish a lewd and lascivious act.  In re Asencio (App. 2 Dist. 2008) 83 Cal.Rptr.3d 400, 166 Cal.App.4th 1195, review denied.

Testimony of pathologist, who conducted an examination of murder victim, to the effect, inter alia, that victim had an abnormal anus, a condition usually caused by chronic anal intercourse, and which indicated that a few red cells under the mucosa of the anus could possibly have been produced by attempted anal intercourse, was admissible for the slight relevance it had, which could be considered with other evidence, as to whether deceased had been the victim of a section 288 type of molestation by her murderer.  People v. Worthington (App. 3 Dist. 1974) 113 Cal.Rptr. 322, 38 Cal.App.3d 359.

Proof of penetration or emission is not necessary for conviction of offense of committing lewd and lascivious act upon body, members and private parts of child under age of fourteen;  only requirement is touching with lustful intent.  People v. Pilgrim (App. 5 Dist. 1963) 30 Cal.Rptr. 170, 215 Cal.App.2d 374.

Where, on motion for new trial in prosecution for violation of this section, appellant produced a doctor, who had examined the victim, and who stated victim’s hymen might have been slightly stretched, that there was no penetration of genitals by an adult male penis, but that he had examined only six or so female children under such circumstances presented, and was not a specialist in the field, and where defendant had made no request during trial for an order for such doctor to appear and had made no motion for continuance, trial judge’s refusal to grant new trial on basis of such testimony was not an abuse of discretion.  People v. Nothnagel (App. 2 Dist. 1960) 9 Cal.Rptr. 519, 187 Cal.App.2d 219.

Proof of emission is not essential to conviction for violation of this section against lewd or lascivious acts upon child under 14 years of age with lustful intent and only requirement is a touching with lustful intent.  People v. Coontz (App. 1953) 119 Cal.App.2d 276, 259 P.2d 694.

Evidence that defendant inserted thumb in vagina of eight year old child supported conviction of crime against child.  People v. Connell (App. 3 Dist. 1936) 15 Cal.App.2d 380, 59 P.2d 433.

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33. The Importance of the Date of Occurrence of the lewd or lascivious acts under PC 288

Defendant convicted of several counts of forcible lewd conduct on child under age 14 was not denied notice of charges against him, despite contention that inconsistencies in child victims’ testimony indicated that incidents testified to at trial were not the same ones testified to at preliminary hearing, where evidence at preliminary hearing clearly supported same number of counts of lewd conduct involving same victims, and inconsistent testimony regarding dates of incidents, which moved People to amend amended information as to time periods, involved slight changes of only one or two months.  People v. Gil (App. 2 Dist. 1992) 4 Cal.Rptr.2d 697, 3 Cal.App.4th 653.

Minor’s testimony regarding daily practice of molestation from time of family’s move until November 1986 combined with 145-count information charging that molestation occurred during specified one-week periods of relevant time frame sufficiently charged and sufficiently demonstrated molestation to permit defendant to be bound over for trial on charges of lewd and lascivious conduct upon child and one charge of forcible oral copulation.  People v. Superior Court (Caudle) (App. 6 Dist. 1990) 270 Cal.Rptr. 751, 221 Cal.App.3d 1190, review denied.

Fact that child molestation victim cannot recall or relate specific dates, locations or other details of the offenses does not deprive defendant of due process right to defend against the charges against him.  People v. Jones (1990) 270 Cal.Rptr. 611, 51 Cal.3d 34, 51 Cal.3d 294, 792 P.2d 643, as modified, on remand 273 Cal.Rptr. 292.

Defendant’s due process rights were not violated on theory that there was insufficient evidence of any specific act of molestation upon which jury could agree, as child victim’s description of the acts and the specific location of their occurrence was sufficient to differentiate between the various counts, and jury was properly instructed on its duty to agree unanimously on the particular act when the evidence shows that more than one act was committed.  People v. Archer (App. 4 Dist. 1989) 263 Cal.Rptr. 486, 215 Cal.App.3d 197, review denied.

Defendant’s right to due process was not violated by purported vagueness in information and in evidence concerning chronology, in prosecution for incest and committing lewd and lascivious acts upon child under the age of 14;  defense was not based principally on alibi, but rather, rested on purported credibility of personal denial of any sexual intercourse with victim at any time.  People v. Avina (App. 2 Dist. 1989) 259 Cal.Rptr. 178, 211 Cal.App.3d 48, review denied.

Victim’s testimony was sufficiently specific and detailed, in prosecution for incest and committing lewd and lascivious acts upon child under the age of 14, even though victim did not testify as to specific days on which lewd acts and acts of incest occurred;  true issue was credibility, and defendant’s assertion that victim’s testimony lacked specificity was argument regarding victim’s credibility that was better aimed at trier of fact.  People v. Avina (App. 2 Dist. 1989) 259 Cal.Rptr. 178, 211 Cal.App.3d 48, review denied.

In prosecution for lewd conduct with children under 14 years of age with use of obscene or sexually explicit material, any lack of specificity in tying particular acts to specific times, dates, locations, or charges did not deny due process to defendant whose defense was denial coupled with attack on victims’ credibility, not alibi or misidentification.  People v. Coulter (App. 2 Dist. 1989) 257 Cal.Rptr. 391, 209 Cal.App.3d 506, rehearing denied and modified, review denied.

In prosecution for lewd acts upon a minor, jury instruction that prosecution need not specifically prove time of charged offense, coupled with prosecution argument that it need prove only a last act, not time of last act, was prejudicial error since jury may well have believed defendant’s witnesses concerning his lack of opportunity on the weekend in question or, because of its vagueness and alteration, disbelieved minor victim’s testimony of the terminal act, and jury may have convicted defendant on erroneous assumption that it was proper to conclude some terminal act in the unrebutted series occurred near weekend in question.  People v. Barney (App. 3 Dist. 1983) 192 Cal.Rptr. 172, 143 Cal.App.3d 490.

Fact that eleven-year-old victim of lewd and lascivious acts allegedly committed by defendant was vague about calendar dates did not render her testimony false, and jury’s verdict finding defendant guilty on such charge could not be criticized because of inconsistency in her testimony.  People v. Wrigley (1968) 70 Cal.Rptr. 116, 69 Cal.2d 149, 443 P.2d 580.

In prosecution for committing lewd and lascivious acts upon body of child under 14, burden was on people to prove that offenses occurred within period of limitation, but people were not required to prove date with exactness.  People v. Amy (App. 1950) 100 Cal.App.2d 126, 223 P.2d 69.

Instruction that it was immaterial when offense charged in any particular count was committed, provided jury believed that precise offense charged in that particular count was committed and committed within three years prior to filing information, was not erroneous as misleading, where testimony offered concerned only the five acts alleged.  People v. Becker (App. 2 Dist. 1934) 140 Cal.App. 162, 35 P.2d 196.

Testimony of female, giving month of offense and circumstances relating thereto, sufficiently fixed date of lascivious conduct.  People v. Barnett (App. 3 Dist. 1929) 99 Cal.App. 409, 278 P. 885.

The precise date on which the offenese of lewdness, punishable by this section, was committed, is not a material element, and an indictment charging commission within the period of limitations and prior to the finding of the indictment is sufficient.  People v. Anthony (App. 1912) 20 Cal.App. 586, 129 P. 968.

Where defendant’s alibi defense was not specific as to dates but total, in that he made blanket denial of ever having molested his stepdaughter, he was not prejudiced by manner of charging that lewd act in count I occurred between 1 May 1973 and 1 May 1974.  People v. Fritts (App. 2 Dist. 1977) 140 Cal.Rptr. 94, 72 Cal.App.3d 319.

In prosecution for violation of this section, in view of corroboration of prosecutrix’ testimony by defendant’s written statement as to approximate date on which prosecutrix and defendant were in bedroom of defendant’s home, exactness as to the date of the alleged offense was not required, and defendant under such circumstances, was not deprived of his alibi defense and his right to a fair trial, even though trial court did not require proof as to the exact or approximate date of the alleged offense, other than that it occurred “about June 30”.  People v. Ridout (App. 1957) 154 Cal.App.2d 669, 316 P.2d 396.

A motion for new trial of criminal prosecution, made on ground of newly discovered evidence relating to an alibi defense, was properly denied where trial established date of alleged offense to be a month and a day following date alleged in information, and no request for continuance was made by defendant when such situation developed at trial, and regardless of date defendant admitted occasion when offense was allegedly committed.  People v. Smith (App. 1950) 100 Cal.App.2d 153, 223 P.2d 58.

In prosecution for violation of this section, relating to crimes against children and for rape, wherein accused relied on defense of alibi, accused had the right to be advised of the exact occasion upon which he was charged with committing offense so as to be afforded the opportunity to present evidence in support of contention that he was not present with the prosecutrix at the time and place claimed.  People v. McCullough (App. 2 Dist. 1940) 38 Cal.App.2d 387, 101 P.2d 531.

Where prosecution’s testimony showed that sex perversions and lewd acts on child under age 14 were committed at particular times and defendants relied on alibi, instruction that it was wholly immaterial on what day or night such offenses were committed was prejudicial error.  People v. Waits (App. 2 Dist. 1936) 18 Cal.App.2d 20, 62 P.2d 1054.

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34. The Importance of the Place of Occurrence under PC 288

In prosecution for kidnapping, burglary, and lewd conduct with three-year-old child, testimony of mother of alleged victim and chemist which tended to show that child had been on roof of apartment building where attack allegedly occurred had probative value and was properly admitted.  People v. Shields (App. 2 Dist. 1945) 70 Cal.App.2d 628, 161 P.2d 475.

In prosecution for violation of this section, punishing crimes against children, testimony of prosecuting witness that the offense took place by some military place which was reached by certain road, was sufficient to show that offense was committed within the county, in absence of any evidence that defendant drove automobile with prosecuting witness outside county, since court could take judicial notice that there were two fields which were military places within the county, and that they were reached by such road.  People v. Bastio (App. 3 Dist. 1942) 55 Cal.App.2d 615, 131 P.2d 614.

Evidence that defendant charged with lascivious conduct toward children admitted playing hide-and-seek with them at his home and that his home was in city wherein act was committed established locus delicti of offense.  People v. Adams (App. 3 Dist. 1935) 7 Cal.App.2d 743, 47 P.2d 320.

In prosecution for committing lewd act on child where defense was inherent improbability of testimony that offense was committed in automobile, accused’s request for inspection of automobile by jury was properly refused.  People v. McFadden (App. 1934) 2 Cal.App.2d 228, 37 P.2d 1044.

In a prosecution for lewd and lascivious conduct on the body of a girl of 8 years, the trial court, to lay the foundation for the introduction of measurements made by a second witness of the distance from the place where a fire was built to the scene of the crime, properly permitted the prosecuting witness to testify that a few days before the trial she pointed out to another witness the place where the crime was committed.  People v. Hinrich (App. 3 Dist. 1921) 53 Cal.App. 186, 199 P. 1058.

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35. Attempt to Commit Lewd or Lascivious Acts on a Child

To sustain a conviction of attempted lewd or lascivious conduct with a minor under the age of 14, the prosecution has the burden of demonstrating (1) the defendant intended to commit a lewd and lascivious act with a child under 14 years of age, and (2) the defendant took a direct but ineffectual step toward committing a lewd and lascivious act with a child under 14 years of age.  People v. Singh (App. 4 Dist. 2011) 129 Cal.Rptr.3d 461, 198 Cal.App.4th 364, review denied.

Defendant’s act of accompanying undercover officer to motel room where he expected children under 14 years to be, having assembled and brought with him lubricant and sex toys useful for children of expected size, was sufficient to complete crime of attempted molestation, and did not involve mere preparation for crime, even though potential victims were not in fact present.  People v. Reed (App. 4 Dist. 1996) 61 Cal.Rptr.2d 658, 53 Cal.App.4th 389, review denied.

Defendant’s acts went beyond mere preparation with the intent to commit lewd acts upon child so as to constitute attempt, where defendant called victim, spoke to him, and ordered him to disrobe and touch his penis;  whether victim complied or not is beside the point.  People v. Imler (App. 2 Dist. 1992) 11 Cal.Rptr.2d 915, 9 Cal.App.4th 1178, review denied.

A person may be guilty of an attempt to commit the crime, described in this section, of committing a lewd or lascivious act on a child under the age of 14 years.  People v. Stouter (1904) 142 Cal. 146, 75 P. 780.

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35. Physical Presence Not Necessary to Commit a PC 288 Offense

Crime of attempted child molestation can be committed by speaking to victim over telephone.  People v. Imler (App. 2 Dist. 1992) 11 Cal.Rptr.2d 915, 9 Cal.App.4th 1178, review denied.

Defendant’s physical presence was unnecessary to commit crime of attempted child molestation.  People v. Imler (App. 2 Dist. 1992) 11 Cal.Rptr.2d 915, 9 Cal.App.4th 1178, review denied

Conduct on part of defendant that consisted solely of a verbal communication with 13-year-old victim that was solicitous in nature constituted preparation only and did not rise to level of an attempt so as to fall within proscription against attempting to commit a lewd or lascivious act on the body of a child under 14 years of age.  People v. La Fontaine (App. 2 Dist. 1978) 144 Cal.Rptr. 729, 79 Cal.App.3d 176.

Contributing to delinquency of minors by telling children under 14 years of age an obscene story without touching them would not constitute violation of this section, relating to commission of lewd and lascivious acts upon children.  People v. Lamb (App. 1 Dist. 1953) 121 Cal.App.2d 838, 264 P.2d 126.

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36. Aiding and Abetting under PC 288

Even if defendant’s alleged act of standing over bed and watching defendant’s boyfriend sexually molest defendant’s minor daughter was an omission rather than an act, defendant’s alleged failure to act would constitute aiding and abetting in prosecution for committing a lewd or lascivious act on a child under the age of 14; defendant had statutory duty to protect daughter from molestation, and defendant’s failure to attempt to stop boyfriend both encouraged daughter to comply rather than resist and encouraged boyfriend to continue molesting daughter.  People v. Swanson-Birabent (App. 6 Dist. 2003) 7 Cal.Rptr.3d 744, 114 Cal.App.4th 733, review denied.

At preliminary hearing on charge of committing a lewd or lascivious act on a child under the age of 14, magistrate could have properly found that defendant committed an “act” that aided and abetted defendant’s boyfriend in sexually molesting defendant’s daughter; evidence indicated that defendant was standing over the bed when boyfriend molested daughter, and defendant’s presence served important purpose of both encouraging victim to comply rather than resist and encouraging boyfriend to continue molesting daughter.  People v. Swanson-Birabent (App. 6 Dist. 2003) 7 Cal.Rptr.3d 744, 114 Cal.App.4th 733, review denied.

Sufficient evidence existed to support magistrate’s finding at preliminary hearing of reasonable and probable cause to believe that defendant had requisite knowledge of criminal purpose of defendant’s boyfriend, as would support denial of defendant’s motion to dismiss information charging defendant with committing a lewd or lascivious act on a child under the age of 14 and alleging that defendant was an aider and abettor; evidence indicated that defendant watched from side of bed during both alleged incidents of boyfriend touching daughter’s vaginal area, and defendant was not engaged in any activity that might have prevented defendant from noticing that molestation was occurring.  People v. Swanson-Birabent (App. 6 Dist. 2003) 7 Cal.Rptr.3d 744, 114 Cal.App.4th 733, review denied.

Defendant could not be convicted of aiding and abetting lewd or lascivious acts with child under 14 based on children touching children when there was no evidence and prosecution did not proceed on theory that children had the requisite lewd intent;  rather, instruction that defendant’s liability was as principal, predicated on theory of constructive touching or use of child as innocent agent by which defendant committed directed offense, was required.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

Evidence supported convictions on aiding and abetting theory in prosecution for multiple counts of lewd or lascivious acts with child under 14, although defendant argued that even assuming she allowed child to make oral contact with her breast, it did not necessarily follow that she would condone sodomizing of small child;  assuming that defendant only intended to commit the first act, she knowingly participated in situation such that other, varied acts of molestation were natural and probable consequences thereof, and defendant had failed to demonstrate that she was not present, or if not present, not vicariously liable for other offenses.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

Where defendant is charged as aider and abettor, he need not have physical contact with victim to be guilty of offense under this section.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

One charged as an aider and abettor need not have physical contact with victim to be guilty of a violation of this section.  People v. Roberts (App. 2 Dist. 1972) 103 Cal.Rptr. 25, 26 Cal.App.3d 385.

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37. Accomplices under PC 288

In prosecution for violating this section with 10-year-old boy and for violating § 288a with 14-year-old boy, prosecution was not required to call the 14-year-old boy who was probably an accomplice, where he was present at the trial, since prosecution need not call any particular witness nor put on all the evidence relating to a charge so long as all material evidence bearing thereon is fairly presented in such a manner as to accord to defendant a fair trial.  People v. Stanley (1967) 63 Cal.Rptr. 825, 67 Cal.2d 812, 433 P.2d 913.

In prosecution for three specific acts of lewd and lascivious conduct with a minor, the fact that the minor, who was only 11 years old at the time of the trial, admitted on his cross-examination that he knew it was not right to permit the acts complained of, did not require the corroboration of the testimony of the minor on theory that he was an “accomplice”.  People v. Slaughter (App. 3 Dist. 1941) 45 Cal.App.2d 724, 115 P.2d 30.

To justify legal conclusion that child was accomplice of defendant accused of committing an immoral act against such child, proof must have been clear not only that child understood nature and effect of act, that act was forbidden, and, if he were to commit it, he would be punished, but also that he was conscious at time that he was committing a wrongful act.  People v. Williams (App. 2 Dist. 1936) 12 Cal.App.2d 207, 55 P.2d 223.

In prosecution for commission of immoral acts against 11 year old child, complaining witness was not an “accomplice” so as to require corroboration to sustain conviction, in absence of clear proof of his knowledge of wrongfulness of acts.  People v. Becker (App. 2 Dist. 1934) 140 Cal.App. 162, 35 P.2d 196.

In view of § 1111, as amended by Stats.1915, p. 760, defining an accomplice as one liable to prosecution for the identical offense, the testimony of a boy under 14, on whom the lewd and lascivious act defined in this section was committed, need not be corroborated, since he could not be guilty with defendant of the offense charged.  People v. Hulbart (App. 2 Dist. 1921) 55 Cal.App. 112, 202 P. 939.

Children under the age of 14 years of age protected against lewd acts by this section, are not accomplices within the meaning of rules of evidence requiring corroboration;  they not being within § 1111, defining an “accomplice” as one liable to prosecution for the identical offense.  People v. Troutman (1921) 187 Cal. 313, 201 P. 928.

Under express provisions of § 26, defining capacity to commit crime, a boy could not be an accomplice to the offense of lewd and lascivious conduct with a boy under the age of 14 years, denounced by this section.  People v. Camp (App. 1915) 26 Cal.App. 385, 147 P. 95.Criminal Law Key Number 507(7)

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38. Conspiracy to commit a PC 288 offense

Evidence was sufficient to support conviction for conspiracy to violate §§ 288 and 311.4 in prosecution in which evidence showed that all defendants met numerous times for purpose of molesting children and filming those acts.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

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39. Sentencing and Punishment for committing multiple acts that violate PC 288

Defendant’s acts of fondling several different areas on the victim’s body were sufficient to support defendant’s multiple convictions for committing lewd and lascivious acts on a child under the age of 14 years, even though the acts arose from a single incident; when defendant fondled a portion of the victim’s body with the requisite intent a violation occurred, and the violation ceased and another violation occurred when defendant ceased to fondle that area of the victim’s body and began to fondle another area.  People v. Jimenez (App. 3 Dist. 2002) 121 Cal.Rptr.2d 426, 99 Cal.App.4th 450, as modified, review denied, habeas corpus granted 2008 WL 2745303, amended 2009 WL 1110592.

Defendant’s conviction of continuous sexual abuse did not implicitly amount to conviction of an enumerated predicate offense under “One Strike” sentencing statute, despite state’s contention that conviction could have been based on finding that defendant committed three or more acts of lewd or lascivious conduct against a child under 14 years of age; finding of three or more such acts was not only way jury could have convicted defendant of continuous sexual abuse, other forms of continuous sexual abuse were not predicate offenses under “One Strike” law, and jury made no special findings of lewd or lascivious conduct.  People v. Palmer (App. 2 Dist. 2001) 103 Cal.Rptr.2d 301, 86 Cal.App.4th 440, review denied.

Jury’s true finding as to multiple victim sentence enhancement with respect to defendant convicted of continuous sexual abuse was not equivalent of conviction of three or more acts of lewd or lascivious conduct against a child under 14 years of age, and did not trigger application of “One Strike” sentencing statute; true finding on sentence enhancement was not equivalent of a conviction, and jury made no finding of lewd and lascivious conduct and was never instructed on elements thereof.  People v. Palmer (App. 2 Dist. 2001) 103 Cal.Rptr.2d 301, 86 Cal.App.4th 440, review denied.

Conviction of defendant of multiple counts of child molestation based solely on generic testimony of repeated acts of molestation, unspecified as to time or place, does not violate due process.  People v. Higgins (App. 3 Dist. 1992) 11 Cal.Rptr.2d 694, 9 Cal.App.4th 294, rehearing denied.

Consecutive sentences imposed upon defendant convicted of 14 counts of engaging in lewd and lascivious conduct with child under the age of 14 were not prohibited by statute even though some of the acts occurred during the same session.  People v. O’Connor (App. 2 Dist. 1992) 10 Cal.Rptr.2d 530, 8 Cal.App.4th 941, review denied.

Acts of defendant of placing his hand under 12-year-old victim’s shirt and bra and touching her breasts, kissing victim, and placing victim’s hand on his exposed penis should not have been fragmented into three separate counts of lewd and lascivious acts upon a 12-year-old, and thus, conviction and punishment for two duplicate crimes had to fall;  the acts were all committed during one incident.  People v. Bevan (App. 6 Dist. 1989) 256 Cal.Rptr. 233, 208 Cal.App.3d 393.

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40. Offenses Included within PC 288

Multiple sex acts committed on a single occasion can result in multiple statutory violations; such offenses are generally divisible from one another under the multiple-punishments statute, and separate punishment is usually allowed.  People v. Alvarez (App. 4 Dist. 2009) 101 Cal.Rptr.3d 169, 178 Cal.App.4th 999, review denied.

Three-year statute of limitations for prosecution of felonies, rather than one-year statute of limitations for prosecution of misdemeanors, applied to prosecution for annoying or molesting a child under age 18 with prior conviction of performance of lewd act upon a child under 14; despite fact that annoying or molesting offense was generally a misdemeanor, given defendant’s prior conviction for lewd act, annoying or molesting offense was felony with statutory maximum punishment of six years in prison.  People v. Shaw (App. 5 Dist. 2009) 99 Cal.Rptr.3d 112, 177 Cal.App.4th 92, review denied.

Application of three-year statute of limitations for prosecution of felonies, rather than one-year statute of limitations for prosecution of misdemeanors, to prosecution of defendant for annoying or molesting a child under age 18 as a recidivist did not violate defendant’s right to equal protection, as a person such as defendant, who annoys or molests a child, and has done so in the past, is not similarly situated to one who has committed the same offense but has never before done so.  People v. Shaw (App. 5 Dist. 2009) 99 Cal.Rptr.3d 112, 177 Cal.App.4th 92, review denied.

Battery is lesser included offense of lewd acts against minor of 14 or 15 years by person at least 10 years older; harmful or offensive touching prohibited by battery statute was necessarily included within statutory definition of lewd acts, and both could be accomplished constructively by defendant’s instigating minor to touch himself or herself in harmful or offensive manner.  People v. Thomas (App. 1 Dist. 2007) 53 Cal.Rptr.3d 473, 146 Cal.App.4th 1278, review denied.

Defendant could not lawfully be convicted of both greater offense of forcible lewd conduct with a child and included offense of lewd conduct on a child; remedy is to dismiss conviction of the less serious crime.  People v. Chan (App. 2 Dist. 2005) 26 Cal.Rptr.3d 878, 128 Cal.App.4th 408, as modified, review denied, appeal after new sentencing hearing 2006 WL 1351577, unpublished, habeas corpus denied 2009 WL 1445898.

Misdemeanor offense of child annoyance is not a lesser included offense of felony of committing lewd act upon child under age of 14; offense of child annoyance requires commission of an objectively offensive act of annoyance or molestation, an element not necessarily present in the offense of committing a subjectively lewd act; disapproving 174 Cal.App.3d 1101, 220 Cal.Rptr. 339;  165 Cal.App.3d 839, 212 Cal.Rptr. 174;  125 Cal.App.3d 55, 178 Cal.Rptr. 375;  79 Cal.App.3d 176, 183, 144 Cal.Rptr. 729.  People v. Lopez (1998) 79 Cal.Rptr.2d 195, 19 Cal.4th 282, 965 P.2d 713.

Under accusatory pleading test for lesser included offenses, information which charged defendant with committing lewd act upon child under age of 14, by “touch[ing] victim’s vaginal area outside of her underwear” for purposes of his sexual gratification, did not describe offense in such way that its commission necessarily also resulted in commission of misdemeanor offense of child annoyance, as language did not necessarily allege objectively irritating or annoying act of child molestation.  People v. Lopez (1998) 79 Cal.Rptr.2d 195, 19 Cal.4th 282, 965 P.2d 713.

Defendant in prosecution for first-degree murder on theory of felony-murder by actual or attempted lewd or lascivious act with victim under age 14 was not entitled to instruction on allegedly lesser included offense of misdemeanor child molestation;  defendant confessed to bringing victim to his apartment to take nude pictures of him and admitted disrobing him although he stated that he did so after victim’s death, and defendant interpreted evidence as not establishing any criminally lewd act or act of criminal annoyance, and there was no evidence that it would absolve defendant of lewd or lascivious act, but would not absolve him of misdemeanor child molestation.  People v. Memro (1995) 47 Cal.Rptr.2d 219, 11 Cal.4th 786, 12 Cal.4th 783D, 905 P.2d 1305, modified on denial of rehearing, certiorari denied 117 S.Ct. 106, 519 U.S. 834, 136 L.Ed.2d 60.

Contributing to delinquency of minor is not lesser-included offense of performing lewd or lascivious act with child under 14.  People v. Memro (1995) 47 Cal.Rptr.2d 219, 11 Cal.4th 786, 12 Cal.4th 783D, 905 P.2d 1305, modified on denial of rehearing, certiorari denied 117 S.Ct. 106, 519 U.S. 834, 136 L.Ed.2d 60.

Charge of lewd or lascivious acts with a child is not a lesser included offense of continuous sexual abuse of child, as the former requires the specific intent of appealing to or arousing the lust or passions of the defendant or the child, whereas the latter can be based upon a course of substantial sexual conduct which requires no specific intent but could be for the purpose of inflicting pain or appealing to the sexual interest of a third person.  People v. Avina (App. 1 Dist. 1993) 18 Cal.Rptr.2d 511, 14 Cal.App.4th 1303.

Instructional error which failed to provide adequate guidance for jury to determine whether defendant violated statute prohibiting commission of lewd or lascivious act upon a child under age of 14 or whether he violated lesser included offense of misdemeanor offenses of annoying or molesting child and battery was harmless error;  testimony of both witnesses pointed to only offense of commission of lewd or lascivious act upon child and thus lesser included offense instructions were not even required.  People v. Self (App. 1 Dist. 1993) 16 Cal.Rptr.2d 67, 12 Cal.App.4th 1222, rehearing denied, review denied.

Defendant was properly charged and convicted of separate counts of lewd and lascivious conduct with a child under the age of 14 years, notwithstanding defendant’s claim that separate counts constituted parts of continuous course of conduct fragmented into multiple offenses;  although all acts occurred during separate episodes in a tub, in a bed and on a sofa, videotape record clearly showed that they were separate acts and not preparatory to or necessarily associated with any other charged act.  People v. Bright (App. 4 Dist. 1991) 277 Cal.Rptr. 612, 227 Cal.App.3d 105, review denied.

Defendants were not entitled to instruction on nonforcible lewd acts as lesser included offense of forcible lewd acts with child under 14, where defendants denied taking part in any molestations and alleged they were either misidentified or crimes never actually occurred;  if State’s evidence were believed, defendants were guilty as charged, while if defense evidence were believed, defendants were not guilty of anything.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

Requested instruction on misdemeanor battery should have been given in prosecution for lewd and lascivious forceful acts on child under age of 14, forceful oral copulation with child under age of 14, and forceful penetration by foreign object;  theory of defense was that victim concocted sexual assault story in retaliation for defendant striking her;  there was evidence that victim had watched x-rated movies and had knowledge necessary to make up story;  no physical evidence unequivocally demonstrated sexual contact;  and prosecution presented extensive evidence of initial battery immediately before alleged sexual incidents.  People v. Santos (App. 6 Dist. 1990) 271 Cal.Rptr. 811, 222 Cal.App.3d 723.

Erroneous failure to give requested instruction on misdemeanor battery allegedly preceding sex offenses was harmless in prosecution for lewd and lascivious forceful acts on child under age of 14, forceful oral copulation with child under age of 14, and forceful penetration by foreign object;  jury decided sexual offense counts and then turned to enhancement issues;  and at that point jury asked whether initial assault occurred during charged offenses and could be considered in voting on enhancement allegation of inflicting great bodily injury.  People v. Santos (App. 6 Dist. 1990) 271 Cal.Rptr. 811, 222 Cal.App.3d 723.

Misdemeanor battery was “lesser related offense,” rather than “lesser included offense,” of forceful lewd and lascivious acts on child under age of 14, forceful oral copulation with child under age of 14, and forceful penetration by foreign object, and, thus, trial court would not have been required to give sua sponte instruction on misdemeanor battery.  People v. Santos (App. 6 Dist. 1990) 271 Cal.Rptr. 811, 222 Cal.App.3d 723.

Defendant charged with committing a lewd act on a child under the age of 14 was not entitled to an instruction on lesser-related offense of battery;  if the jury believed the victim’s testimony that defendant molested him, it had no choice but to find the defendant guilty of the offense charged and, if it did not believe the victim’s testimony, it had to find the defendant not guilty, as there was no evidence suggesting touching which did not amount to lewd and lascivious conduct.  People v. Harlan (App. 4 Dist. 1990) 271 Cal.Rptr. 653, 222 Cal.App.3d 439, review denied.

Defendant could be convicted of child endangerment based on same conduct underlying charges of sodomy or lewd conduct with a child.  People v. Thompson (1990) 266 Cal.Rptr. 309, 50 Cal.3d 134, 785 P.2d 857, rehearing denied, certiorari denied 111 S.Ct. 226, 498 U.S. 881, 112 L.Ed.2d 180, rehearing denied 111 S.Ct. 720, 498 U.S. 1043, 112 L.Ed.2d 708, habeas corpus denied.

It is no defense to charge of lewd and lascivious conduct to show that defendant committed another sexual crime in the process.  People v. Gordon (App. 3 Dist. 1985) 212 Cal.Rptr. 174, 165 Cal.App.3d 839.

Same acts constituting oral copulation, sodomy, or unlawful sexual intercourse could not be used as basis for conviction for lewd and lascivious conduct.  People v. Deletto (App. 3 Dist. 1983) 195 Cal.Rptr. 233, 147 Cal.App.3d 458, certiorari denied 104 S.Ct. 2156, 466 U.S. 952, 80 L.Ed.2d 542.

Giving of an instruction that, though defendant was charged with two counts of violating this section proscribing lewd and lascivious conduct, he could only be convicted of one such count would have been futile because the act relied upon to support the violation charged in one count was separate and distinct from the conduct forming the basis of the violation charged in the other count.  People v. Reeves (App. 2 Dist. 1980) 164 Cal.Rptr. 426, 105 Cal.App.3d 444.

Where, in prosecution for incest, commission of lewd and lascivious acts upon child under age of 14 years, and unlawful sexual intercourse, testimony was presented by victim to effect that defendant had engaged in multiple instances of sexual activity with her, convictions for unlawful sexual intercourse and incest were not subject to reversal on ground that such crimes were necessarily included in charge of lewd conduct.  People v. Alva (App. 2 Dist. 1979) 153 Cal.Rptr. 644, 90 Cal.App.3d 418

In prosecution for lewd and lascivious conduct toward a child, while contributing to delinquency of a minor is an included offense, breach of peace does not come within that category.  People v. Piccionelli (App. 1959) 175 Cal.App.2d 391, 346 P.2d 542.

Conviction on each count of indictment charging statutory rape, and lewd and lascivious conduct and contributing to the delinquency of a minor respectively, all based on the same acts would necessitate reversal of conviction on lesser offense of contributing to delinquency of a minor which is included in the other offenses.  People v. Greer (1947) 30 Cal.2d 589, 184 P.2d 512.

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41. Sodomy and PC 288

Lewd conduct with a child is not a necessarily included offense of either rape or sodomy, which require only general intent.  People v. Benavides (2005) 24 Cal.Rptr.3d 507, 35 Cal.4th 69, 105 P.3d 1099, rehearing denied, modification denied.

A conviction for lewd conduct with a child can be obtained at trial and upheld on appeal by the same evidence used to show the defendant raped and sodomized the child.  People v. Benavides (2005) 24 Cal.Rptr.3d 507, 35 Cal.4th 69, 105 P.3d 1099, rehearing denied, modification denied.

Defendant who committed act of sodomy on child could be convicted of both sodomy and lewd and lascivious conduct with a child.  People v. Thompson (1990) 266 Cal.Rptr. 309, 50 Cal.3d 134, 785 P.2d 857, rehearing denied, certiorari denied 111 S.Ct. 226, 498 U.S. 881, 112 L.Ed.2d 180, rehearing denied 111 S.Ct. 720, 498 U.S. 1043, 112 L.Ed.2d 708, habeas corpus denied.

Lewd act on child was not lesser included offense of sodomy or rape in that latter crimes were general intent crimes, while lewd act offense required proof of specific intent.  People v. Griffin (1988) 251 Cal.Rptr. 643, 46 Cal.3d 1011, 761 P.2d 103.

Offense of lewd conduct is not lesser-included offense of sodomy because sodomy may be committed without specific intent required for conviction of lewd conduct.  People v. Pearson (1986) 228 Cal.Rptr. 509, 42 Cal.3d 351, 721 P.2d 595, rehearing denied.

Attempted sodomy is not an included offense of the crime of lewd conduct with child under 14.  People v. Gordon (App. 3 Dist. 1985) 212 Cal.Rptr. 174, 165 Cal.App.3d 839.

Where it appeared that actions of accused subsequent to his commission of crime against nature on child did not constitute an attempt to commit, or an act in violation of $286, relating to crime against nature, the jury was free to convict accused of offense of committing lascivious acts on a child.  People v. Karpinski (App. 2 Dist. 1941) 43 Cal.App.2d 545, 111 P.2d 393.

 

Conviction, under this section, for lewd and lascivious acts with children is not precluded, because acts of lewdness charged lead up to perpetration of sodomy, denounced by § 286.  People v. Lind (App. 2 Dist. 1924) 68 Cal.App. 575, 229 P. 990.

42. Incest and PC 288

Defendant’s commission of lewd and lascivious act upon body of his ten-year-old daughter and of act of incest with the daughter on same day followed but one course of conduct for series of acts and defendant could not be compelled to serve two sentences for the same act.  People v. Batres (App. 2 Dist. 1969) 75 Cal.Rptr. 397, 269 Cal.App.2d 900.

Lewd and lascivious conduct, though ultimately relating to offense of incest, constitutes separate “crime”.  People v. McAfee (App. 2 Dist. 1927) 82 Cal.App. 389, 255 P. 839.

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42. Contributing to the Delinquency of a Minor as an offense included within PC 288

Contributing to delinquency of minor was not lesser included offense of lewd and lascivious conduct, and therefore trial court was not required to instruct jury sua sponte on contributing to delinquency of minor.  People v. Vincze (App. 1 Dist. 1992) 11 Cal.Rptr.2d 430, 8 Cal.App.4th 1159, rehearing denied, review denied, habeas corpus dismissed.

Crime of contributing to delinquency of a minor is necessarily included in crime of lewd and lascivious acts upon bodies of two children, aged eight and eleven.  People v. Harvath (App. 2 Dist. 1969) 82 Cal.Rptr. 48, 1 Cal.App.3d 521.

Offense of contributing to delinquency of a minor was necessarily included in offense of lewd and lascivious behavior toward a child, and defendant could be convicted of the lesser offense while acquitted of the greater.  People v. Doyle (App. 1959) 175 Cal.App.2d 309, 345 P.2d 971.

To establish violation of this section there must be proof of a specific intent to arouse, appeal to, or gratify the lust or passions or sexual desires of defendant or of the child, but proof of such specific intent is not necessary to establish the commission of offense commonly called contributing to delinquency of minor.  People v. Perkins (App. 1957) 147 Cal.App.2d 793, 305 P.2d 932.

Statement by prosecuting attorney in argument to jury that if defendant had committed upon prosecuting witnesses, who were under 14 years of age, violations of Welf. & Inst.C. § 702 (repealed;  see, now, Pen.C. § 272), relating to offense of contributing to delinquency of a minor, defendant would necessarily be guilty of a violation of this section, making commission of lewd and lascivious acts against children under 14 years of age an offense, was erroneous statement of law, but was not prejudicial to defendant, in view of cautionary instructions to disregard statements of law made by counsel and determine what the law was from instructions of court.  People v. Lamb (App. 1 Dist. 1953) 121 Cal.App.2d 838, 264 P.2d 126.

 

Where charges of statutory rape, lewd and lascivious acts against child under 14 years of age, and contributing to delinquency of minor were all based upon same acts, conviction on charge of lewd and lascivious acts was affirmed, but conviction on other two charges was reversed on ground that such charges constituted “included offenses.”  People v. Chapman (App. 1 Dist. 1947) 81 Cal.App.2d 857, 185 P.2d 424.

Under indictment or information charging statutory rape and lewd and lascivious conduct, defendant may be convicted of offense of contributing to delinquency of a minor without any express charge of such offense and such conviction would necessarily constitute acquittal of the greater offenses of statutory rape and lewd and lascivious conduct.  People v. Greer (1947) 30 Cal.2d 589, 184 P.2d 512.

Under § 954, an acquittal of count charging lewd and lascivious conduct upon a minor in information framed on theory that the same lewd and lascivious conduct violated this section making such conduct a felony and also the statute prohibiting contributing to the delinquency of a minor, did not render a nullity a verdict of guilty on count charging contributing to delinquency of a minor.  People v. Codina (1947) 30 Cal.2d 356, 181 P.2d 881.

A verdict acquitting defendant on charge of committing specified lewd or lascivious acts upon boy and convicting same defendant on second charge of contributing to minor’s delinquency by acts other than acts specified in first charge, proof of which would not have supported conviction on first charge, was not inconsistent so as to require a reversal of conviction.  People v. Taylor (App. 4 Dist. 1938) 25 Cal.App.2d 525, 78 P.2d 207.

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43. Criminal Solicitation and PC 288

Statute governing offense of criminal solicitation did not reach conduct of defendant who was charged with committing such offense by soliciting minors to engage in lewd conduct with him; criminal solicitation offense unambiguously conditioned liability on asking another to “commit” the offense of lewd or lascivious acts, defendant did not act in a manner calculated to induce minors he solicited to commit lewd or lascivious acts, minors would not have committed offense of lewd or lascivious acts by doing what defendant asked since such acts were not crimes to minors.  People v. Herman (App. 1 Dist. 2002) 119 Cal.Rptr.2d 199, 97 Cal.App.4th 1369.

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44. Continuous Sexual Abuse of a Child and its relationship to PC 288

Separate punishments for three acts of forcible lewd conduct during a single incident would not violate the multiple-punishments statute; each lewd act, specifically kissing, digital penetration, and forced fondling, was separate and distinct, and none of the acts were necessary to accomplish the others.  People v. Alvarez (App. 4 Dist. 2009) 101 Cal.Rptr.3d 169, 178 Cal.App.4th 999, review denied.

Separate punishments for forcible lewd conduct and aggravated sexual assault violated the multiple-punishments statute, where the charge of forcible lewd conduct was based on the very same act of digital penetration that formed the basis for the charge of aggravated sexual assault.  People v. Alvarez (App. 4 Dist. 2009) 101 Cal.Rptr.3d 169, 178 Cal.App.4th 999, review denied.

Violation of statute prohibiting continuous sexual abuse of a child necessarily includes violation of statute prohibiting lewd or lascivious conduct with child under age of 14, for purpose of commitment determination of juvenile to California Youth Authority (CYA).  In re Emilio C. (App. 2 Dist. 2004) 11 Cal.Rptr.3d 85, 116 Cal.App.4th 1058.

Charge of child molestation was not a lesser-included offense of child molestation with duress so as to preclude conviction on both counts.  People v. Sanchez (App. 4 Dist. 1989) 256 Cal.Rptr. 446, 208 Cal.App.3d 721, review denied, certiorari denied 110 S.Ct. 286, 493 U.S. 921, 107 L.Ed.2d 266.

No instruction on lesser offense of child molestation was required in prosecution for lewd and lascivious conduct where if defendant was guilty at all, he was guilty of the greater offense and giving of the lesser-included offense instruction would have been inconsistent with defendant’s defense, which was complete denial of any acts.  People v. Gordon (App. 3 Dist. 1985) 212 Cal.Rptr. 174, 165 Cal.App.3d 839.

Although trial court erred in failing to instruct jury that it could convict defendant of lesser included child-molestation offense if it was established by sufficient evidence, error was harmless in light of fact that jury was properly instructed on charge of assault with intent to commit rape and its lesser included offense, misdemeanor assault, and proceeded to convict defendant of greater offense so that jury necessarily resolved intent issue in lewd and lascivious act case adversely to defendant and instructional error was thus not prejudicial because it did not remove a material issue from consideration of jury.  People v. Poon (App. 1 Dist. 1981) 178 Cal.Rptr. 375, 125 Cal.App.3d 55.

A violation of provisions of § 647a proscribing misdemeanor offense of annoying or molesting a minor under age of 18 years is necessarily included in provisions of this section proscribing offense of willfully and lewdly committing a lewd or lascivious act upon body of a child under the age of 14 years.  People v. La Fontaine (App. 2 Dist. 1978) 144 Cal.Rptr. 729, 79 Cal.App.3d 176.

Court’s acceptance and ordering recordation of verdicts finding defendant guilty of both committing a lewd and lascivious act upon the body of a child and the lesser crime of annoying or molesting a child under the age of 18 years was not prejudicial error since the logical consistency of the two verdicts was obvious.  People v. Miranda (App. 2 Dist. 1967) 62 Cal.Rptr. 339, 254 Cal.App.2d 517.

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45. Oral Copulation as both a primary and lesser offense of PC 288

Oral copulation with a minor functions as primary offense, as opposed to being a lesser included offense of lewd or lascivious act with child, in only two instances: (1) when act of oral copulation is voluntary and victim is 16 or 17 years old, and (2) when act is voluntary, victim is 14 or 15 years old, and perpetrator is not over 21 years old.  People v. Hofsheier (2006) 39 Cal.Rptr.3d 821, 37 Cal.4th 1185, 129 P.3d 29, on remand 2006 WL 1196585, unpublished.

Where there is only involved one series of associated acts with a child under 14, violation of § 288a proscribing sex perversion is included in violation of this section proscribing lewd and lascivious conduct.  People v. Cline (App. 1 Dist. 1969) 83 Cal.Rptr. 246, 2 Cal.App.3d 989.

Violation of this section is not necessarily included in a violation of § 288a because the former may be committed only with a minor while the latter with either a minor or an adult.  People v. Grimes (App. 1959) 173 Cal.App.2d 248, 343 P.2d 146.

Defendant who, after copulating child, engaged in conduct of type denounced by this section, was properly charged with violating both this section and § 288a, notwithstanding close relationship of all of his conduct in point of time, and he did not thereby suffer double jeopardy.  People v. Loignon (App. 1958) 160 Cal.App.2d 412, 325 P.2d 541.

Where both convictions of defendant for lewd or lascivious acts on the body of a child under 14 and for sexual perversion could not stand, because both were based on the same act, judgment of conviction of the less severely punishable offense, which was the sexual perversion, would be reversed, and judgment of conviction for lewd or lascivious acts on the body of a child under 14 would be affirmed.  People v. Webb (App. 1958) 158 Cal.App.2d 537, 323 P.2d 141.

Oral copulation committed at same time as lewd and lascivious offense against 11 year old boy was not included in the latter offense, and where offenses were based on separate and independent acts, defendant was properly charged with the two crimes and did not suffer double jeopardy.  People v. Akers (App. 1956) 143 Cal.App.2d 224, 299 P.2d 398.

Sex perversion committed at same time as lewd and lascivious offense against a child under 14 years of age was not included in the latter offense, and separate punishment for both offenses was permissible, where offenses were based on separate and distinct acts.  People v. Slobodion (1948) 31 Cal.2d 555, 191 P.2d 1, certiorari denied 69 S.Ct. 24, 335 U.S. 835, 93 L.Ed. 387.

Conviction under information charging violation of this section, relating to crimes against children would be sustained, notwithstanding evidence would have supported conviction under § 288a, relating to sex perversions had defendant been so charged, where there was ample testimony to establish commission of offense charged.  People v. Hunt (App. 3 Dist. 1936) 17 Cal.App.2d 284, 61 P.2d 1208.

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46. Unlawful Sexual Intercourse as both a primary and lesser offense of PC 288

Defendant’s acts of sexually fondling and having intercourse with minor, though occurring on single occasion, were distinct acts for which defendant could be separately convicted and punished.  People v. Scott (1994) 36 Cal.Rptr.2d 627, 9 Cal.4th 331, 885 P.2d 1040, modified on denial of rehearing.

Unlawful sexual intercourse is not a lesser-included offense of lewd and lascivious conduct with child under 14 requiring an appropriate instruction on lesser-included offenses.  People v. Gordon (App. 3 Dist. 1985) 212 Cal.Rptr. 174, 165 Cal.App.3d 839.

Since evidence clearly showed that act relied upon to support charge of attempted unlawful sexual intercourse was the same act that formed basis for prosecution for lewd and lascivious acts upon body of child under age of 14 years, trial court erred in failing to instruct jury that it could return no more than one guilty verdict, but judgment would be affirmed where the trial court sentenced defendant on the more serious conviction while striking the other count.  People v. Nicholson (App. 1 Dist. 1979) 159 Cal.Rptr. 766, 98 Cal.App.3d 617.

While a crime may be committed under this section without its amounting to rape, it is impossible that a rape may be committed upon a child under age of fourteen years without thereby violating the provisions of such section.  People v. Stampher (App. 1959) 168 Cal.App.2d 579, 336 P.2d 207.

Conviction on count charging assault with intent to commit rape was not void as inconsistent with acquittal on other counts charging lewd and lascivious conduct on body of child and conduct tending to cause minor to lead lewd or immoral life.  People v. Hartshorn (App. 1 Dist. 1943) 59 Cal.App.2d 285, 138 P.2d 782.

Under § 954, providing that verdict of acquittal of one or more counts shall not be deemed to be an acquittal of any other count, the dismissal of statutory rape count, upon district attorney’s motion, did not operate to acquit defendant on count charging lewd conduct with a child, based on the same act.  People v. Kearney (1942) 20 Cal.2d 435, 126 P.2d 612.

In prosecution for statutory rape and for violation of this section, where only acts proved were acts of rape, the fact that jury acquitted defendant of violation of this section, did not amount to an acquittal of rape charged, since two offenses are separate and jury could have convicted defendant of either offense.  People v. Stangler (1941) 18 Cal.2d 688, 117 P.2d 321.

One who commits lewd acts with child without intent to commit rape, but subsequently conceives such intent and commits rape, may be convicted of lascivious acts with child because of previous conduct, as well as of rape.  People v. O’Donnell (1938) 11 Cal.2d 666, 81 P.2d 939.

That defendant also was guilty of rape, attempt to commit rape, or assault with intent to commit rape did not invalidate conviction of committing lewd and lascivious acts upon child under 14, where there was evidence tending to prove commission of such offense.  People v. Piburn (App. 1934) 138 Cal.App. 56, 31 P.2d 470.

Acquittal of rape did not require acquittal of lewd and lascivious conduct, elements of rape and included offenses not being same as those of lewd and lascivious conduct.  People v. Jameson (App. 4 Dist. 1933) 136 Cal.App. 10, 27 P.2d 935.

47. Appointment of Legal Counsel for Minors involved in PC 288 Case

Procedures used to appoint counsel for children who were alleged to be victims of lewd and lascivious acts were not proper;  counsel was appointed through order obtained ex parte by prosecutor based on his own declaration, which did not show appointment of counsel for children to be necessary or even beneficial to prevent psychological harm to them, or to be constitutionally permissible.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

Requiring noticed hearing prior to appointment of counsel for allegedly sexually abused minors would be prudent.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

 

Victim is not party to criminal action, so any counsel appointed for allegedly sexually abused minors could not have the same status, vis-a-vis his ability to control proceedings, as prosecutor or defense counsel.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

Appointment of counsel for alleged minor victims of lewd and lascivious acts is permissible, although subd. (d) of this section does not expressly authorize appointment of counsel, if proper showing is made and proper limitations are established.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

Subdivision (d) of this section only empowers court to do what is constitutionally necessary to prevent psychological harm to child who is alleged victim of lewd or lascivious acts, and thus, court cannot appoint counsel for children who will in essence act as prosecution’s agent and arbitrarily interfere with defense access to children.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

Although counsel appointed for children who are alleged victims of lewd and lascivious acts will have ethical obligations toward children as clients, their role under subd. (d) of this section will be more advisory in nature;  counsel could not have power to veto defense access to children, request for discovery, or the like, except to extent that power is vested in children/guardians and conveyed to court through counsel.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

If trial court appoints counsel for child who is allegedly victim of lewd or lascivious acts pursuant to subd. (d) of this section, counsel’s role should be carefully spelled out following full hearing, at which prosecution, defense, and proposed counsel are allowed to participate and provide input, and if situation arises in which ex parte appointment of counsel is necessary, full hearing should follow within reasonable time.  People v. Pitts (App. 5 Dist. 1990) 273 Cal.Rptr. 757, 223 Cal.App.3d 606, review denied.

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47. Entrapment and Sting Operations in PC 288 Cases

Evidence at trial for attempting to commit a lewd act with a child under the age of 14 did not warrant jury instruction on entrapment, even if volunteer for private organization, who posed as 12-year-old girl on internet, was working at the request of law enforcement; defendant initiated contact with a 12-year-old girl on the Internet, showing her a picture of his penis to find out how she would react, defendant began a conversation about sex and her experience once he confirmed she was not turned off by the pictures, defendant had her watch him masturbate and told her about what he wanted to do to her, defendant told volunteer that he would have to meet her in private because of his age, and volunteer merely provided an opportunity for defendant to spend time alone with a 12-year-old girl in an empty house.  People v. Federico (App. 4 Dist. 2011) 120 Cal.Rptr.3d 349, 191 Cal.App.4th 1418, review denied.

 

Volunteer for organization who posed as 12-year-old girl on internet in an attempt to discover sexual predators was not acting as an agent of law enforcement, for entrapment purposes, although law enforcement officers participated in sting operation by arresting defendant when he arrived at residence, where volunteer was acting at the direction of organization rather than law enforcement, which was brought into the sting only at the end, and organization was committed to monitoring the internet and would continue to do so whether or not law enforcement came to sting operation.  People v. Federico (App. 4 Dist. 2011) 120 Cal.Rptr.3d 349, 191 Cal.App.4th 1418, review denied.

Defendant who placed ad soliciting sex with female of “any age,” responded to detective’s offer to engage in lewd and lascivious contact with two young children, and refrained from withdrawing despite being offered numerous opportunities was not entrapped into committing attempted molestation of child under 14 years, considering also lack of evidence that detectives cajoled or importuned defendant, or that they in any way overbore his will.  People v. Reed (App. 4 Dist. 1996) 61 Cal.Rptr.2d 658, 53 Cal.App.4th 389, review denied.

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48. Mistake of Fact as a defense in PC 288 case

That children under 14 years whom defendant intended to molest did not exist, but were created by undercover detectives corresponding with defendant, did not amount to mistake of fact that could be raised as defense to charge of attempted molestation; defendant showed no honest and reasonable, or even unreasonable, belief that his actions would have legal outcome.  People v. Reed (App. 4 Dist. 1996) 61 Cal.Rptr.2d 658, 53 Cal.App.4th 389, review denied.

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49. Intoxication in PC 288 Cases

Tape recording of defendant’s statement to officer was material, and should have been produced by prosecution, where statement could have impeached testimony of officer and of mother of alleged victim that defendant was not intoxicated and statement supported defense theory that defendant was too drunk to form specific intent needed for conviction for committing lewd or lascivious act upon a child under 14 years of age.  People v. Filson (App. 1 Dist. 1994) 28 Cal.Rptr.2d 335, 22 Cal.App.4th 1841.

Instruction to jury that if defendant charged with committing lewd act upon three-year-old girl was intoxicated at time offense was committed, jury could consider his intoxication in determining defendant’s specific intent, was, in itself, adequate to explain relationship of intoxication and intent in this case.  People v. O’Tremba (App. 2 Dist. 1970) 84 Cal.Rptr. 336, 4 Cal.App.3d 524.

In prosecution for lascivious conduct toward a twelve year old girl, proffered instructions on the effect of defendant’s intoxication upon the necessary element of intent, were properly refused where there was no evidence of defendant’s intoxication at time of the offense.  People v. Robinson (App. 1948) 87 Cal.App.2d 772, 197 P.2d 776.

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50. Statute of Limitations in PC 288 cases

Information which charged that defendant committed a lewd or lascivious act against a child under the age of 14 years, that he forcibly penetrated child’s vagina with a foreign object, and that defendant forcibly engaged in oral copulation, and which charged that crimes were committed within the applicable limitations period, alleged facts that avoided the statute of limitations bar such that defendant’s failure to dispute date the crimes were committed barred claim on appeal that evidence was insufficient to establish that the crimes occurred within the limitations period.  People v. Simmons (App. 3 Dist. 2012) 148 Cal.Rptr.3d 554, 210 Cal.App.4th 778, review filed.

Statute of limitations providing that a prosecution “may be commenced any time prior to the victim’s 28th birthday” if the crime “is alleged to have been committed when the victim was under the age of 18 years” applied to claim that defendant committed a lewd and lascivious act against child under 14 years of age; while six-year statute of limitations was in effect, 10-year statute of limitations was enacted, and then, while that 10-year period was in effect, the subject statute was enacted, again extending the limitations period.  People v. Simmons (App. 3 Dist. 2012) 148 Cal.Rptr.3d 554, 210 Cal.App.4th 778, review filed.

Statute extending the limitations period to six years for certain crimes “notwithstanding the limitation of time described in section 800” did not extend three-year statute of limitations on charge that defendant exhibited harmful matter to a minor for purposes of seduction.  People v. Simmons (App. 3 Dist. 2012) 148 Cal.Rptr.3d 554, 210 Cal.App.4th 778, review filed.

Evidence at trial for committing lewd act on a child under 14 was sufficient to support extension of statute of limitations pursuant to statute allowing a criminal complaint to be filed within one year of a report of molestation of a minor; complaint on its face indicated that prosecution was otherwise time-barred, there was evidence that defendant’s molestation of victim when she was eight years old involved substantial sexual conduct, including victim’s testimony that defendant digitally penetrated her vagina when she was eight years old, and victim’s testimony was corroborated by statements defendant made during pretext call and by evidence of uncharged sexual conduct.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

Defendant’s failure to raise the statute of limitations issue at trial for committing a lewd act on a child under 14 did not forfeit consideration of the issue on appeal, as the issue was jurisdictional and the charging document indicated on its face that the action was time-barred.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

When a defendant argues on appeal that there was no independent evidence clearly and convincingly corroborating the victim’s allegation of child molestation, as required to extend the statute of limitations, the appellate court’s task is to determine whether there is substantial evidence corroborating the allegations; the corroboration does not have to corroborate each allegation in the criminal pleading, only the victim’s allegation, and the corroboration does not have to be sufficient to support a conviction.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

When a report of sexual abuse occurs that involves “substantial sexual conduct,” the period of limitations for lewd acts on a child, continuous sexual abuse of a child, or other sex crimes involving child victims is one year from that report, so long as the other requirements for the limitations period extension are met; thus, when there is a report of sexual abuse not involving substantial sexual conduct, the one-year period of limitations does not begin to run.  People v. Superior Court (App. 2 Dist. 2007) 68 Cal.Rptr.3d 800, 157 Cal.App.4th 694.

Report of defendant’s daughter to law enforcement authorities, indicating that defendant had committed acts of sexual misconduct against her more than six years ago when she was a minor, but not including allegations of substantial sexual conduct, did not trigger one-year limitations period for prosecution to initiate a criminal complaint for continuous sexual abuse of a child and lewd acts on a child; rather, the one-year period was not triggered until daughter made another report approximately five years later, in which she alleged substantial sexual conduct by defendant.  People v. Superior Court (App. 2 Dist. 2007) 68 Cal.Rptr.3d 800, 157 Cal.App.4th 694.

Three-year statute of limitations for prosecution of felonies, rather than one-year statute of limitations for prosecution of misdemeanors, governed prosecution for attempt to molest or annoy child under age of 18 years with prior conviction of performance of lewd act upon a child under 14; despite fact that annoying or molesting offense was generally a misdemeanor, given defendant’s prior conviction of lewd act, which was element of offense rather than enhancement, attempt to commit offense by this defendant constituted attempt to commit felony offense.  In re McSherry (App. 2 Dist. 2007) 68 Cal.Rptr.3d 518, 157 Cal.App.4th 324.

Three-year statute of limitations for prosecution of felonies, rather than one-year statute of limitations for prosecution of misdemeanors, governed prosecution for attempt to molest or annoy child under age of 18 years with prior conviction of performance of lewd act upon a child under 14; despite fact that annoying or molesting offense was generally a misdemeanor, given defendant’s prior conviction of lewd act, offense was felony with maximum punishment of six years in prison.  People v. McSherry (App. 2 Dist. 2006) 49 Cal.Rptr.3d 389, 143 Cal.App.4th 598, review denied, habeas corpus denied 68 Cal.Rptr.3d 518, 157 Cal.App.4th 324, habeas corpus dismissed 2009 WL 1605636, habeas corpus denied 2011 WL 97701.

Statute allowing filing of otherwise time-barred charge of lewd act with child one year after victim’s report to law enforcement agency was permissible extension of, rather than unconstitutional revival of, statute of limitations, as applied to defendant for whom original six-year limitations period was not expired when statute became effective.  People v. Superior Court (App. 2 Dist. 2004) 10 Cal.Rptr.3d 893, 116 Cal.App.4th 1192, review denied.

Provision in statute providing a one year period for prosecution of child molestation charges following a report “to law enforcement” by a victim who has reached adulthood applied, and thus, criminal action against defendant for allegedly committing a lewd act on a child under 14 years of age, which was filed within one year of victim’s report to law enforcement, was timely filed, notwithstanding expiration of six-year statute of limitations, even if criteria in another provision of the statute, providing a one year period for prosecution following a report “to the responsible adult,” were met, and action would not have been timely filed under that provision.  People v. Maguire (App. 2 Dist. 2002) 125 Cal.Rptr.2d 556, 102 Cal.App.4th 396, review denied.

Provision in statute providing a one year period for prosecution of child molestation charges following a report “to the responsible adult” by a victim who has reached adulthood did not apply to allow filing of criminal action against defendant after expiration of six-year statute of limitations, where there was no allegation or evidence that defendant committed sexual offenses against the victim after commission of the charged act.  People v. Maguire (App. 2 Dist. 2002) 125 Cal.Rptr.2d 556, 102 Cal.App.4th 396, review denied.

Statutory exception to six-year statute of limitations for certain sexual offenses against children, requiring that defendant have “committed” at least one lewd or lascivious act against the same child within the statute of limitations, did not require that defendant have been convicted of violation of lewd or lascivious act statute within limitations period.  People v. Smith (App. 6 Dist. 2002) 120 Cal.Rptr.2d 185, 98 Cal.App.4th 1182, review denied, denial of habeas corpus affirmed 220 Fed.Appx. 563, 2007 WL 387589, certiorari denied 128 S.Ct. 319, 552 U.S. 930, 169 L.Ed.2d 225.

Defendant did not, by pleading guilty to three counts of child molestation, waive statute of limitations challenge to two of those convictions.  People v. Lamb (App. 1 Dist. 1999) 90 Cal.Rptr.2d 565, 76 Cal.App.4th 664, as modified.

Statute that allowed prosecution of certain enumerated sex crimes which occurred at any time before January 1, 1994, including any crime otherwise barred by statute of limitations, if prosecution was commenced within one year of the time that victim reported an independently corroborated crime, necessarily applied in case where the six-year limitations period for lewd conduct against children had expired before January 1, 1994.  People v. Frazer (1999) 88 Cal.Rptr.2d 312, 21 Cal.4th 737, 982 P.2d 180, rehearing denied, as modified, certiorari denied 120 S.Ct. 1960, 529 U.S. 1108, 146 L.Ed.2d 792, rehearing denied 120 S.Ct. 2765, 530 U.S. 1284, 147 L.Ed.2d 1023.

Statute that permitted prosecution for lewd conduct against children to be commenced within one year after an independently corroborated report by victim, even though fixed six-year limitations period had expired before statute’s effective date, did not impermissibly deprive defendant of a defense so as to constitute an “ex post facto law”; statute made no change in the act or intent elements that prosecution had to prove beyond reasonable doubt in order to obtain a conviction, the circumstances that could be used by defendant to show no lewd touching of an underage child occurred, or the range of prison sentences available as punishment; disapproving  53 Cal.App.4th 227, 61 Cal.Rptr.2d 734;  33 Cal.App.4th 1223, 39 Cal.Rptr.2d 414;  165 Cal.App.3d 839, 212 Cal.Rptr. 174;  28 Cal.App.3d 846, 106 Cal.Rptr. 516.  People v. Frazer (1999) 88 Cal.Rptr.2d 312, 21 Cal.4th 737, 982 P.2d 180, rehearing denied, as modified, certiorari denied 120 S.Ct. 1960, 529 U.S. 1108, 146 L.Ed.2d 792, rehearing denied 120 S.Ct. 2765, 530 U.S. 1284, 147 L.Ed.2d 1023.

Statute that permitted prosecution for lewd conduct against children to be commenced within one year after victim’s independently corroborated report, even though six-year limitations period had expired prior to statute’s effective date, did not violate substantive due process; defendant did not obtain a constitutionally protected interest with prior expiration of limitations period.  People v. Frazer (1999) 88 Cal.Rptr.2d 312, 21 Cal.4th 737, 982 P.2d 180, rehearing denied, as modified, certiorari denied 120 S.Ct. 1960, 529 U.S. 1108, 146 L.Ed.2d 792, rehearing denied 120 S.Ct. 2765, 530 U.S. 1284, 147 L.Ed.2d 1023.

Statute that permitted prosecution for certain sex crimes to be commenced within one year after victim made an independently corroborated report of the crime, even in cases where limitations periods on those offenses had expired prior to that statute’s effective date, was not facially invalid under due process principles based on its alleged impairment of a defendant’s ability to contest the charge.  People v. Frazer (1999) 88 Cal.Rptr.2d 312, 21 Cal.4th 737, 982 P.2d 180, rehearing denied, as modified, certiorari denied 120 S.Ct. 1960, 529 U.S. 1108, 146 L.Ed.2d 792, rehearing denied 120 S.Ct. 2765, 530 U.S. 1284, 147 L.Ed.2d 1023.

Statute providing limitations period of one year from date a person of any age reported to law enforcement agency that he or she was victim of lewd acts while under age of 18 years violated ex post facto protections insofar as statute purported to revive and extend the already expired three-year limitations period applicable to the charged offenses.  Lynch v. Superior Court (App. 2 Dist. 1995) 39 Cal.Rptr.2d 414, 33 Cal.App.4th 1223, review denied.

Individual crimes proscribed by statute addressing lewd or lascivious acts with child under 14, having different elements than does section prohibiting continuous sex abuse of child, are not lesser offenses necessarily included therein and, consequently, defendant’s conviction on continuous abuse count as well as for five lewd acts with same child was proper;  though they were “alternative” offenses in that they could not result in double punishment, they were not “alternative” in sense that commission of one necessarily constituted acquittal of other.  People v. Valdez (App. 2 Dist. 1994) 28 Cal.Rptr.2d 236, 23 Cal.App.4th 46, review denied.

Charge against defendant for lewd or lascivious acts with child under age of 14 was subject to six-year limitations period, even though Penal Code § 800, establishing that limitation period, specifically applied only to crimes punishable by imprisonment for eight years or more, and defendant, under version of this section applicable at time of offense, was subject to maximum punishment of seven years;  six-year limitations period related to punishment provided for applicable crimes at time of its passage, and maximum imprisonment for defendant’s crime had been increased at time of enactment of limitations section.  People v. Simpson (App. 4 Dist. 1986) 231 Cal.Rptr. 200, 186 Cal.App.3d 1125, review denied.

Count of amended information, as filed June 8, 1984, alleging that lewd and lascivious acts upon a child under age of 14 occurred on or about and between May 1979 and June 1979 and count alleging similar act on or about summer of 1978 were timely where original information was filed April 20, 1984, the original three-year limitation statute, which would have expired in 1981 was extended, effective to January 1, 1981, to five years and effective January 1, 1982 the statute was extended to six years;  word “summer” was taken as meaning the astronomical year, that being the period between the summer solstice and the autumnal equinox.  People v. Smith (App. 5 Dist. 1985) 217 Cal.Rptr. 634, 171 Cal.App.3d 997.

Even if word “summer,” as used in information charging that offense of felony child molestation occurred on or about summer of 1978, was interpreted broadly to cover periods within and without the limitations statute, by pleading nolo contendere and thus admitting all matters necessary to his conviction the defendant was deemed to have admitted commission of a crime within the statutory period;  case was not one where the charging document showed on its face that the action was barred because the offense could not have been committed within the applicable period.  People v. Smith (App. 5 Dist. 1985) 217 Cal.Rptr. 634, 171 Cal.App.3d 997.

In prosecution in 1941 for violation of this section, punishing crimes against children, wherein there was a conflict in evidence whether prosecuting witness had ever been in defendant’s home where offense allegedly took place after the summer of 1937, defendant was entitled to specific instruction as to his defense of the three year statute of limitations.  People v. Hubbell (App. 2 Dist. 1942) 54 Cal.App.2d 49, 128 P.2d 579.

Even assuming that habeas corpus petitioner’s federal due process rights were implicated by state court’s alleged failure to apply its own statute of limitations, any constitutional violations did not result in actual prejudice, where record of trial contained testimony that there was continuous, near-daily abuse over a period that included two months within the limitations period for charges of lewd and lascivious conduct upon a child under the age of 14 and lewd and lascivious conduct upon a child under the age of 14 by use of force, violence, duress, menace, or fear of bodily injury.  Gonzalez v. Knowles, C.A.9 (Cal.)2004, 116 Fed.Appx. 781, 2004 WL 2381113, Unreported

51. Indictment for PC 288

Trial court acted within its discretion in allowing amendment of information, after all evidence was adduced at trial and before closing arguments, to allege multiple-victim enhancements as to all eight counts of sex offenses against three minors, rather than only as to one count of lewd and lascivious act against child under age 14, even though, in making pretrial plea offer of 30 years to life, prosecution had stated that defendant’s maximum potential sentence was “60 to life plus 8,” and amendment resulted in maximum sentence of 120 years to life, where trial court concluded that all parties understood the multiple-victim enhancement attached to each count, that defense strategy would not have been different if the information had reflected multiple-victim enhancements as to each count, and that allegation of enhancement as to only one count was clerical error.  People v. Miralrio (App. 3 Dist. 2008) 84 Cal.Rptr.3d 169, 167 Cal.App.4th 448, review denied.

Record of conviction on guilty plea allowed finding, in Sexually Violent Predators Act (SVPA) proceeding, that defendant committed specific sexually violent offense against 12-year-old boy, even though police reports indicated offenses against this boy and 11-year-old on one day and another offense against 12-year-old one month earlier, and two counts of complaint, one of which was dismissed after plea, each named 12-year-old as victim; nothing indicated that earlier offense was contemplated in criminal complaint, duplication of 12-year-old’s name was typographical error, and plea indicated which act defendant admitted.  People v. Carlin (App. 6 Dist. 2007) 58 Cal.Rptr.3d 495, 150 Cal.App.4th 322.

When the trial court determines that certain counts are not time-barred, defendant’s convictions as to those charged offenses will stand if the reviewing court can determine from the available record, including both the trial record and the preliminary hearing transcript, that the action is not time-barred despite the prosecution’s error in filing an information in which those counts appeared to be time-barred.  People v. Smith (App. 6 Dist. 2002) 120 Cal.Rptr.2d 185, 98 Cal.App.4th 1182, review denied, denial of habeas corpus affirmed 220 Fed.Appx. 563, 2007 WL 387589, certiorari denied 128 S.Ct. 319, 552 U.S. 930, 169 L.Ed.2d 225.

Incorrect reference in information to the extended statute of limitations for some of the charged counts of child molestation as an “enhancement” rather than an allegation did not deprive defendant of notice that the extended limitations period was being alleged.  People v. Lamb (App. 1 Dist. 1999) 90 Cal.Rptr.2d 565, 76 Cal.App.4th 664, as modified.

Information charging defendant with attempted lewd acts upon fictitious or imaginary children was supported by evidence of letters, telephone conversations, and conversation at motel indicating his intent to sexually molest two girls that police sting operation had led him to believe existed, combined with evidence of his act of entry into motel room where he believed they were, notwithstanding that consummation of his intent was factually impossible.  People v. Keister (App. 4 Dist. 1996) 54 Cal.Rptr.2d 431, 46 Cal.App.4th 1318, review granted and cause transferred 57 Cal.Rptr.2d 456, 924 P.2d 97.

Prosecutor was not required to charge single count of continuous sexual abuse of child, rather than ten counts of lewd act on child, even if defendant resided in same home or had recurring access to child and engaged in three or more acts of substantial sexual conduct with child over period of at least three months.  People v. Johnson (App. 2 Dist. 1995) 46 Cal.Rptr.2d 838, 40 Cal.App.4th 24, review denied.

Due process rights of defendant charged with several counts of lewd and lascivious conduct and one count of unlawful sexual intercourse were violated by prosecution’s failure to charge offense that was specific as to time, place, or other particulars or to prove specific offense with regard to any count, and violation was not cured by unanimity instruction.  People v. Van Hoek (App. 5 Dist. 1988) 246 Cal.Rptr. 352, 200 Cal.App.3d 811, review denied.

Defendant convicted of committing lewd and lascivious acts on child under age of 14 received adequate notice of charges against him when information conformed to state notice requirements and specific date of offenses was not element of charges, defendant did not seek more definite statement of charges, defendant received additional notice from preliminary hearing and from trial itself, which enabled him to mount well-informed defense, and hypothesized inability to defend against individual instances of molestation was irrelevant to innocence defense presented.  Walsh v. Gomez, C.A.9 (Cal.)2001, 19 Fed.Appx. 510, 2001 WL 966251, Unreported.

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51. Charging of a Specific Offense under PC 288

In prosecution of alleged “resident child molester” on one count of lewd and lascivious conduct for each of ten months in which conduct was alleged to have occurred, prosecutor’s failure to make election between various acts of sexual intercourse having distinguishing characteristics for each month for which evidence of distinguishing characteristics was presented and failure of court to sua sponte give jury unanimity instruction on those counts required reversal.  People v. Vargas (App. 5 Dist. 1988) 253 Cal.Rptr. 894, 206 Cal.App.3d 831, review denied.

Defendant’s stepdaughter’s testimony that defendant had sexual intercourse with her either in her room, his room or in bathroom every other day, unaccompanied by evidence which would have permitted distinction between acts, could not justify convictions on one count of lewd or lascivious conduct for each month in which such conduct was alleged to have occurred;  testimony precluded meaningful election between numerous acts of sexual intercourse testified to, denied defendant opportunity to formulate defense and prevented jury from unanimously agreeing on specific act or acts in violation of defendant’s due process rights.  People v. Vargas (App. 5 Dist. 1988) 253 Cal.Rptr. 894, 206 Cal.App.3d 831, review denied.

Reversible error occurred during prosecution of defendant for incest, commission of lewd and lascivious act upon child under age of 14 years and unlawful sexual intercourse, when trial court failed to instruct jury as to manner in which it should approach its task when faced with proof of continuous criminal conduct, although only one criminal act was charged in each count as having occurred some time within five-month period;  prosecution should have been required, prior to argument, to inform jury of specific act upon which it intended to rely in order to prove each of alleged offenses.  People v. Alva (App. 2 Dist. 1979) 153 Cal.Rptr. 644, 90 Cal.App.3d 418.

Trial court’s instruction that the defendant could not be found guilty of performing various sex acts on young males unless the jury unanimously agreed with respect to each count that the finding of guilt related to a single specific act and that, if the jurors were unable to so agree, they must acquit the defendant on each count as to which no unanimous agreement could be reached regarding a single specific act was sufficient to preclude defendant from being convicted without the jurors agreeing on a single specific act as the basis for the conviction.  People v. Rogers (1978) 146 Cal.Rptr. 732, 21 Cal.3d 542, 579 P.2d 1048.

Although there was substantial evidence of crimes before trier of fact on charge of commission of lewd and lascivious act with child under 14 years of age during a specified one-year period where there was no evidence as to an individual, specific crime and there was a failure to prove any one act within the statute of limitation, there was not substantial evidence to prove any one act as required to deny defense motion for acquittal.  People v. Creighton (App. 2 Dist. 1976) 129 Cal.Rptr. 249, 57 Cal.App.3d 314.

Where defendant was charged with commission of lewd and lascivious act upon child under 14 years of age during a specified one-year period, the giving of the “on or about” charge constituted reversible error in prosecution in which if one act was proven to the satisfaction of jury then numerous other acts must also have been proven, since instruction allowed jury to choose among numerous offenses which were almost impossible to separately identify.  People v. Creighton (App. 2 Dist. 1976) 129 Cal.Rptr. 249, 57 Cal.App.3d 314.

Where children, who testified against defendant in prosecution under this section and § 288a, could not remember the particular calendar dates when acts charged allegedly occurred, but defendant was sufficiently apprised of approximate dates of offenses charged, and defendant admitted being present at time described but denied the acts charged, it was not prejudicial error not to require prosecution to elect and fix precise date on which it claimed that the acts charged occurred.  People v. Brooks (App. 1955) 133 Cal.App.2d 210, 283 P.2d 748.

Where there was evidence of acts and conduct on part of accused which showed violation of this section, relating to lascivious acts on a child as distinguished from violation of § 286, relating to crime against nature, and jury was fairly instructed on provisions of the statutes, and instructed that the offenses were separate and required separate verdicts, refusal of instruction that jury could not find accused guilty of violation of both statutes arising from the same act and that, should jury believe accused guilty, it would then become its duty to elect between conviction under either one of the statutes, was not error.  People v. Karpinski (App. 2 Dist. 1941) 43 Cal.App.2d 545, 111 P.2d 393.

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52. Plea Agreements in PC 288 Cases

Factual basis for defendant’s no contest plea to lewd and lascivious conduct with child, as stated by prosecutor, did not establish aggravating circumstance of taking advantage of position of trust, as would support finding that a stipulation to that factual basis by defendant would be an admission of the aggravating circumstance for sentencing purposes, where prosecutor indicated that defendant committed the offenses against victim when he took victim to a bathroom located in a park, but did not state that victim had been entrusted to defendant’s care or specify what defendant’s role was in relation to his daughter’s daycare operation.  People v. French (2008) 73 Cal.Rptr.3d 605, 43 Cal.4th 36, 178 P.3d 1100, as modified.

Defendant, who pleaded no contest to lewd and lascivious conduct with child, made no stipulation sufficient to constitute an admission to the aggravating circumstance of taking advantage of position of trust in committing offense, as would allow imposing upper term sentence under determinate sentencing law without jury trial, where defendant’s counsel stated only that he agreed that witnesses would testify to facts as recited by prosecutor rather than stipulating that facts were correct, and factual basis as stated by prosecutor did not clearly establish that victim had been entrusted to defendant’s care.  People v. French (2008) 73 Cal.Rptr.3d 605, 43 Cal.4th 36, 178 P.3d 1100, as modified.

Defendant’s waiver of jury trial on lewd and lascivious conduct with child, in connection with his no contest plea and plea agreement, did not waive his constitutional right to jury trial of aggravating sentencing factor of taking advantage of position of trust and confidence, where at time of plea, no right to jury trial on such circumstance had been recognized.  People v. French (2008) 73 Cal.Rptr.3d 605, 43 Cal.4th 36, 178 P.3d 1100, as modified.

Evidentiary hearing was warranted on habeas petitioner’s claim that he received ineffective assistance of counsel in entering nolo contendere pleas to child sex abuse charges; factual issues existed as to whether counsel habitually disregarded needs of clients, failed to investigate facts of case, failed to prepare for trial, and failed to provide petitioner with all relevant information regarding potential sentence, and also as to whether alleged ineffectiveness was prejudicial.  In re Vargas (App. 2 Dist. 2000) 100 Cal.Rptr.2d 265, 83 Cal.App.4th 1125, review denied.

Habeas petitioner made adequate showing, for purposes of entitlement to evidentiary hearing, that he would not have accepted plea offer on child sex abuse charges in absence of counsel’s ineffective assistance; record indicated that counsel misrepresented sentence to be imposed pursuant to plea agreement, petitioner provided evidence of counsel’s lack of preparation for trial, and petitioner insisted that he was innocent, that he wanted to go to trial, and that charges were fabricated.  In re Vargas (App. 2 Dist. 2000) 100 Cal.Rptr.2d 265, 83 Cal.App.4th 1125, review denied.

Application of statutory amendment that banned expungement of convictions for child molestation, to defendant who pleaded guilty to that offense before amendment took effect, did not deny defendant the benefit of plea bargain; expungement was not clearly part of parties’ understanding nor was agreement unworkable without it, and defendant received substantial benefit even without expungement by avoiding a prison sentence.  People v. Acuna (App. 2 Dist. 2000) 92 Cal.Rptr.2d 224, 77 Cal.App.4th 1056.

Defendant who enters into plea agreement in case involving multiple counts of child molestation, and who is eligible for and requests probation, can have no reasonable expectation that dismissed counts will not be considered for sentencing purposes, inasmuch as the court is required to order a report on defendant’ s mental fitness for probation; in such a situation, not only may the court consider the dismissed counts, but the prosecutor may comment on any subject properly and necessarily covered by the mental fitness report.  People v. Lamb (App. 1 Dist. 1999) 90 Cal.Rptr.2d 565, 76 Cal.App.4th 664, as modified.

Guilty plea to three counts of committing lewd act upon a child under age 14, entered pursuant to an agreement that the nine remaining child molestation counts would be dismissed but that the conduct underlying two of those counts could be considered for sentencing purposes, was invalid; entire course of charged conduct could be considered at sentencing by way of required mental fitness report, and therefore defendant was substantially misadvised as to consequences of his plea.  People v. Lamb (App. 1 Dist. 1999) 90 Cal.Rptr.2d 565, 76 Cal.App.4th 664, as modified.

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53. Jury Bias in PC 288 Cases

 

Error in jury instruction defining “lewd or lascivious act” was harmless beyond reasonable doubt, where prosecution relied exclusively upon act of touching whereby defendant urged victim to touch his genitals, and did not argue that victim’s touching of defendant’s shoulder constituted lewd or lascivious conduct.  People v. Gaglione (App. 1 Dist. 1994) 32 Cal.Rptr.2d 169, 26 Cal.App.4th 1291, rehearing denied, review denied.

Where juror in prosecution involving child molestation denied on voir dire that any event of a similar nature had happened to her but informed jury during its deliberations that when she was 15 her stepfather had caressed her sexually and inquired, much as defendant had allegedly asked his victim whether it felt good or hurt, defendant was not entitled to new trial on ground of jury misconduct in view of fact that juror had not intentionally concealed the incident but had forgotten it, that her remarks did not disclose bias or prejudice and that they apparently had no substantial influence upon ultimate verdict.  People v. Resendez (App. 2 Dist. 1968) 66 Cal.Rptr. 818, 260 Cal.App.2d 1.

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54. Questions of Fact for the Jury

Whether requisite “lewd or lascivious act” has occurred is ordinarily a question of fact for jury to decide in lewd-and-lascivious-act prosecution;  however, trial judges must be especially sensitive and alert and, in appropriate cases, grant motions for judgment of acquittal at conclusion of prosecution’s case-in-chief to ensure that innocent touching is not made criminal.  People v. Sharp (App. 1 Dist. 1994) 36 Cal.Rptr.2d 117, 29 Cal.App.4th 1772, rehearing denied, review denied, certiorari denied 115 S.Ct. 2006, 514 U.S. 1130, 131 L.Ed.2d 1006, habeas corpus dismissed 2002 WL 202375.

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55. Jury Instructions

Any error in sentencing defendant under California law for sodomy and oral copulation convictions due to court’s instructions that forcible oral copulation and forcible sodomy may be accomplished by fear of immediate and unlawful bodily injury, rather than threat of great bodily harm was harmless, where defendant, following rape of victim, stated that “we can’t have no witnesses” while putting gun to victim’s forehead.  King v. White, C.D.Cal.1993, 839 F.Supp. 718.

Trial court did not have any duty to sua sponte instruct jury that sex crimes involving minor victim had to have been committed after certain date, as alleged in the information, in order for the prosecution to be timely.  People v. Simmons (App. 3 Dist. 2012) 148 Cal.Rptr.3d 554, 210 Cal.App.4th 778, review filed.

Trial court, in prosecution for commission of lewd and lascivious act toward child under the age of 14 years, was not required to instruct sue sponte on definition of admission and that such admission should be viewed with caution in relationship to defendant’s flight, where court did instruct that evidence of flight could be considered only if it occurred immediately after commission of crime.  People v. Mills (App. 4 Dist. 1978) 146 Cal.Rptr. 411, 81 Cal.App.3d 171.

Trial court’s error, in failing to instruct sua sponte on battery as a lesser included offense of lewd acts on a child under 14, was not prejudicial to defendant, since in light of evidence that defendant committed other sexual offenses against victim and four other children, no reasonable jury could have concluded that defendant acted without the sexual motivation required for a conviction for a lewd act.  People v. Gray (App. 2 Dist. 2011) 131 Cal.Rptr.3d 674, 199 Cal.App.4th 167, review granted and opinion superseded 133 Cal.Rptr.3d 855, 264 P.3d 821.

Defendant’s failure, at trial for committing a lewd act on a child under 14, to request jury instructions on statute of limitations issue precluded any argument on appeal that jury instructions should have been given.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

Counsel’s failure to request a jury instruction concerning requirements of statute extending the limitations period for child molesting, which would have required the jury to decide whether defendant engaged in substantial sexual conduct with victim when she was eight years old, was not prejudicial, as it was not reasonably probable that the jury would have found that the defendant did not digitally penetrate victim’s vagina when she was eight years old, and thus did not constitute ineffective assistance of counsel; although victim initially testified that defendant did not digitally penetrate her vagina when she was eight years old, she reversed that testimony on direct examination, and on cross-examination expressly confirmed the penetration, jury evidently found victim to be a credible witness, and victim’s testimony revealed many years of molestation, including numerous instances of substantial sexual conduct, such that it was unlikely jury would have disbelieved her reversal of direct testimony and confirmation on cross-examination.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

Evidence at trial for attempting to commit a lewd act with a child under the age of 14 did not warrant jury instruction on entrapment, even if volunteer for private organization, who posed as 12-year-old girl on internet, was working at the request of law enforcement; defendant initiated contact with a 12-year-old girl on the Internet, showing her a picture of his penis to find out how she would react, defendant began a conversation about sex and her experience once he confirmed she was not turned off by the pictures, defendant had her watch him masturbate and told her about what he wanted to do to her, defendant told volunteer that he would have to meet her in private because of his age, and volunteer merely provided an opportunity for defendant to spend time alone with a 12-year-old girl in an empty house.  People v. Federico (App. 4 Dist. 2011) 120 Cal.Rptr.3d 349, 191 Cal.App.4th 1418, review denied.

Any error was harmless in jury instructions allegedly omitting an element that defendant’s touching of the victim must have been done in a “lewd or sexual manner” for the underlying offenses of lewd and lascivious acts on a child under 14, to defendant’s convictions of three counts of continuous sexual abuse of a child under 14, where there was evidence of photographs taken by defendant of his unclothed granddaughters and one photograph of a granddaughter orally copulating defendant, absent evidence that defendant’s repeated molestations of his granddaughters were innocent touchings without the intent of sexual gratification.  People v. Sigala (App. 2 Dist. 2011) 119 Cal.Rptr.3d 674, 191 Cal.App.4th 695, review denied.

In prosecution for forcible lewd and lascivious acts with victim who was nine years old at time of trial, pattern jury instruction on weighing witness credibility adequately covered defendant’s theory of the case that victim misidentified defendant as her attacker because she did not fully understand the proceedings, since the instruction plainly told the jury to consider whether victim could perceive, describe, and remember events correctly;  whether she could clearly convey her version of events in response to questioning;  whether her multi-disciplinary interview center (MDIC) interview was inconsistent with her testimony; whether her testimony was reasonable in light of all the other evidence; and whether victim’s parents or anyone else exerted improper influence over her testimony.  People v. Chue Vang (App. 3 Dist. 2009) 90 Cal.Rptr.3d 328, 171 Cal.App.4th 1120, review denied.

Jury instruction irrelevantly stating, in the absence of evidence that defendant personally performed an abortion on victim, that an abortion could constitute great bodily injury for purposes of sentence enhancement for the offense of lewd act on child under age of 14, was harmless, even though evidence was presented that defendant facilitated the abortion, and prosecutor argued that the abortion was “substantial” and “significant” due to its invasiveness, where jury was instructed to disregard any instruction which applied to facts they determined not to exist.  People v. Cross (2008) 82 Cal.Rptr.3d 373, 45 Cal.4th 58, 190 P.3d 706.

Given ample evidence that defendant sought out and viewed images on his computer indicative of child pornography, any error was harmless, in trial court’s failure to instruct jury that it was required to find that defendant possessed the images with specific intent to possess child pornography, in order to consider them as evidence of uncharged acts to prove intent, in trial for attempted lewd or lascivious act on a child under 14 and attempted distribution or exhibition of harmful matter to a minor; counsel conceded that defendant had actual knowledge of five of the images, and certain images were there because he used a sharing program to search for images fitting certain criteria.  People v. Garelick (App. 6 Dist. 2008) 74 Cal.Rptr.3d 815, 161 Cal.App.4th 1107, review denied.

Jury instruction given on lewd or lascivious acts committed on a child by force or fear, which stated that “an act is accomplished by fear if the child is actually and reasonably afraid or she is actually but unreasonably afraid and the defendant knows of her fear and takes advantage of it,” was accurate statement of the law, even though defendant claimed jury cannot find fear unless there is evidence that the child’s participation was impelled by an implied threat; pattern jury instruction stated that when the commission of the lewd or lascivious acts are based on the use of fear, a threatening action or statement is not required.  People v. Veale (App. 4 Dist. 2008) 72 Cal.Rptr.3d 360, 160 Cal.App.4th 40, review denied.

Standard instruction defining reasonable doubt as the “absence of an abiding conviction in the truth of the charges” did not lower prosecution’s burden of proof in prosecution for lewd and lascivious acts on two or more children under the age of 14, and thus did not violate due process.  People v. Guerrero (App. 3 Dist. 2007) 66 Cal.Rptr.3d 701, 155 Cal.App.4th 1264, review denied.

Pattern jury instruction allowing jury to conclude that defendant, charged multiple counts of lewd and lascivious conduct on child, was disposed or inclined to commit sexual offenses based on evidence of prior rape of disable woman did not violate defendant’s due process right; instruction cautioned jury that it was not required to draw conclusion and that such conclusion was insufficient, alone, to support conviction.  People v. Cromp (App. 3 Dist. 2007) 62 Cal.Rptr.3d 848, 153 Cal.App.4th 476, rehearing denied, review denied.

Though trial court’s failure to instruct jury on battery as lesser included offense of lewd acts against minor of 14 or 15 years by person at least 10 years older was not prejudicial as to three of four charged lewd acts offenses, which were supported by substantial evidence of sexual arousal element of lewd acts, as to fourth offense, which involved defendant touching victim’s shoulder while he was playing videogame, an objectively nonsexual act, instructional omission was prejudicial.  People v. Thomas (App. 1 Dist. 2007) 53 Cal.Rptr.3d 473, 146 Cal.App.4th 1278, review denied.

Defendant was entitled to a specific acts unanimity instruction, where he was charged with 10 counts of lewd and lascivious conduct with a child under 14 years of age, and convicted on only one count; evidence sufficiently differentiated between different types, locations, and episodes of molestations as to which a jury might disagree regarding the particular acts constituting the crime defendant was convicted of committing.  People v. Smith (App. 3 Dist. 2005) 34 Cal.Rptr.3d 472, 132 Cal.App.4th 1537.

The trial court’s failure to provide a corpus delicti jury instruction, which stated that a conviction must be supported by proof of the corpus delicti aside from or in addition to defendant’s extrajudicial statements was harmless error, in prosecution for forcible lewd act upon a child under 14 and other crimes; defendant would not have received a more favorable result if the instruction had been given due to evidence that defendant entered the victim’s apartment at night, did not take anything from the apartment, touched the victim on her stomach, covered the victim’s mouth and throat, and then returned to the victim’s home on two later occasions.  People v. Alvarez (2002) 119 Cal.Rptr.2d 903, 27 Cal.4th 1161, 46 P.3d 372, rehearing denied.

Jury instruction defining clear and convincing evidence as demonstrating “a high probability of truth of the facts for which it is offered as proof,” and stating that “such evidence requires a higher standard of proof than proof by a preponderance of the evidence,” given in conjunction with instruction on preponderance of the evidence, adequately explained meaning of “clear and convincing” evidence requirement of statute permitting filing of a charge of committing a lewd act upon a child after expiration of six-year statute of limitations if, among other things, there is evidence that clearly and convincingly corroborates the victim’s allegation.  People v. Mabini (App. 2 Dist. 2001) 112 Cal.Rptr.2d 159, 92 Cal.App.4th 654.

Instruction in prosecution for committing lewd act upon a child under age 14, permitting jury to infer defendant committed charged offense if it found by preponderance of evidence that he had disposition to molest young boys based on evidence of other sexual offenses, did not violate defendant’s due process right to have state prove every element of charged crime beyond reasonable doubt; other instructions laid out specific elements of charged offense, requirement that each element be proven beyond reasonable doubt, and requirement of considering instructions as a whole.  People v. Regalado (App. 4 Dist. 2000) 93 Cal.Rptr.2d 83, 78 Cal.App.4th 1056, as modified, review denied.

Any error in instructions permitting jury to infer defendant committed child sexual offense of which he was accused, if it found by preponderance of evidence that he had disposition to molest young boys based on evidence of other sexual offenses, could not have affected verdict in view of strength of case against defendant.  People v. Regalado (App. 4 Dist. 2000) 93 Cal.Rptr.2d 83, 78 Cal.App.4th 1056, as modified, review denied.

Failure to instruct jury, at time of testimony by psychologist explaining victim’s six-year delay in reporting child sexual abuse to police, that testimony was not to be considered for purpose of corroborating victim’s allegations was not abuse of discretion, where jury was so admonished at end of trial prior to deliberations.  People v. Yovanov (App. 4 Dist. 1999) 81 Cal.Rptr.2d 586, 69 Cal.App.4th 392, review denied.

Trial court’s jury instructions on definition of lewd act as any touching with specific intent to arouse, appeal to, or gratify sexual desires of either party or which to objectively reasonable person is sexually indecent or tends to arouse sexual desire could not reasonably be interpreted as allowing jury to convict defendant if it found that defendant touched victim with required intent or if it found defendant touched victim in way which to objectively reasonable person would appear lewd, but with no intent, where court further instructed jury that there must exist union or joint operation of act or conduct and certain specific intent in mind of perpetrator, and that act must be committed with specific intent to arouse, appeal to, or gratify lust, passions of sexual desires of such person or of child.  People v. Levesque (App. 1 Dist. 1995) 41 Cal.Rptr.2d 439, 35 Cal.App.4th 530, modified on denial of rehearing.

Any error in trial court’s instruction on definition of lewd or lascivious act in not requiring the touching to be overtly sexual in itself was harmless, where prosecutor clarified that there were three specific acts upon which the people’s case against defendant was predicated and did not argue that evidence of innocuous touching established that defendant committed charged offense.  People v. Marquez (App. 2 Dist. 1994) 33 Cal.Rptr.2d 821, 28 Cal.App.4th 1315.

Jury instruction that suggested that mere instruction to touch, without any actual touching, was sufficient to constitute lewd or lascivious act, was harmless error;  victim testified that she touched defendant’s penis at defendant’s instigation, and there was no basis for defendant’s assertion that jury might have disbelieved victim’s testimony about touching while believing her about instruction to touch.  People v. Gaglione (App. 1 Dist. 1994) 32 Cal.Rptr.2d 169, 26 Cal.App.4th 1291, rehearing denied, review denied.

Error in jury instruction defining “lewd or lascivious act” was harmless beyond reasonable doubt, where prosecution relied exclusively upon act of touching whereby defendant urged victim to touch his genitals, and did not argue that victim’s touching of defendant’s shoulder constituted lewd or lascivious conduct.  People v. Gaglione (App. 1 Dist. 1994) 32 Cal.Rptr.2d 169, 26 Cal.App.4th 1291, rehearing denied, review denied.

Jury instruction defining “lewd or lascivious act” as any touching of body of person under age of 14 years with specific intent to arouse was erroneous since it included innocuous touching that did not come within meaning of “lewd or lascivious.”  People v. Gaglione (App. 1 Dist. 1994) 32 Cal.Rptr.2d 169, 26 Cal.App.4th 1291, rehearing denied, review denied.

Statutes governing lewd or lascivious acts with child under age 14 and employment or use of minor to perform prohibited acts covered the same subject matter and would be construed together in prosecution for both offenses so as to harmonize them and, if possible, maintain integrity of both of them.  People v. Wallace (App. 5 Dist. 1992) 14 Cal.Rptr.2d 67, 11 Cal.App.4th 568.

Failure to sua sponte instruct jury on elements of attempt after instructing jury that defendant could be found guilty of first-degree felony-murder if killing occurred during “commission of or attempt to commit” lewd and lascivious act upon a child under age of 14 was not prejudicial error in murder prosecution, where prosecutor did not urge attempt theory, information, instructions, and verdict form spoke only in terms of completed lewd act at special circumstance phase, and jurors found special circumstance to be true.  People v. Mickle (1991) 284 Cal.Rptr. 511, 54 Cal.3d 140, 814 P.2d 290, rehearing denied, certiorari denied 112 S.Ct. 1679, 503 U.S. 988, 118 L.Ed.2d 396.

In child molestation case in which evidence indicates jurors might disagree as to the particular act defendant committed, standard instruction requiring jury unanimity as to particular act should be given, but where there is no reasonable likelihood of jury disagreement as to particular acts and the only question is whether defendant in fact committed all of them, jury should be given modified unanimity instruction which, in addition to allowing conviction if jurors unanimously agree on specific acts, also allows conviction if jury unanimously agrees defendant committed all of the acts described by the victim, even if more than the number of acts charged.  People v. Jones (1990) 270 Cal.Rptr. 611, 51 Cal.3d 34, 51 Cal.3d 294, 792 P.2d 643, as modified, on remand 273 Cal.Rptr. 292.

CALJIC instructions, entitled “Verdict May Be Based on One of a Number of Unlawful Acts” and “When Proved MW Show Specific Act or Acts Within Time Alleged,” properly informed jury, in prosecution for lewd and lascivious conduct upon a child under the age of 14, of its duty to agree unanimously on the particular act when the evidence shows that more than one act was committed.  People v. Archer (App. 4 Dist. 1989) 263 Cal.Rptr. 486, 215 Cal.App.3d 197, review denied.

Sexual assault victim was of a tender age at that time of the acts of molestation and she testified about repeated incidents of the same act of sexual molestation, and thus defendant was not entitled to an instruction requiring jury to unanimously agree that defendant committed the same specific criminal act.  People v. Winkle (App. 2 Dist. 1988) 253 Cal.Rptr. 726, 206 Cal.App.3d 822.

Even though 11-year-old sexual misconduct victim testified to two separate acts of misconduct, instruction that all jurors had to agree that defendant committed the same act or acts in order to find him guilty was not required;  evidence at trial consisted of victim’s testimony, and her statements concerning two acts were the same, thus foreclosing any disagreement among jurors as to which act defendant committed.  People v. Meyer (App. 1 Dist. 1988) 243 Cal.Rptr. 533, 197 Cal.App.3d 1307.

Trial court’s failure to instruct jury, sua sponte, that they were required to unanimously agree on which of numerous acts testified to by child victim constituted basis for their guilty verdict on each of 20 counts of lewd and lascivious acts with a child with which defendant was charged, was prejudicial and reversible error.  People v. Martinez (App. 5 Dist. 1988) 243 Cal.Rptr. 66, 197 Cal.App.3d 767, review denied.

Instruction in prosecution for rape or other sex offenses to the effect that such a charge is easily made and difficult to defend against is no longer to be given mandatory application;  on the contrary, such an instruction is inappropriate in any context, and further use of such language is disapproved;  overruling decisions to the contrary.  People v. Rincon-Pineda (1975) 123 Cal.Rptr. 119, 14 Cal.3d 864, 538 P.2d 247.

Where offense of committing a lewd and lascivious act upon girl was sufficiently described in information which was read to jury, was adequately narrated in the evidence and was characterized in instructions given, instructions were not erroneous for failure to define the words “lewd” and “lascivious”.  People v. Ahsbahs (App. 1946) 77 Cal.App.2d 244, 175 P.2d 33.

In prosecution for rape and commission of a lewd act upon body of child under 14 years of age where testimony of prosecutrix was corroborated by direct and circumstantial evidence, refusal of cautionary instructions admonishing jury of dangers with which the prosecutions were fraught and of opportunity for malice and private vengeance and fact accused was almost defenseless was not prejudicial error.  People v. Roberts (App. 2 Dist. 1942) 50 Cal.App.2d 558, 123 P.2d 628.

In prosecution for a crime against a 10 year old child, who admitted that she was coached as to her testimony, which was uncorroborated, the refusal of an instruction cautioning the jury to scan the testimony of the child very carefully before finding accused guilty was reversible error.  People v. Garrett (App. 3 Dist. 1938) 27 Cal.App.2d 249, 81 P.2d 241.

Trial court’s error in misassigning jury instructions for violations of one subsection of California statute governing lewd and lascivious acts to counts alleging violations of another subsection of same act, and vice versa, was not harmful error, where none of the elements that differed between the subsections was in issue, subsections were correctly identified to jury on the information, on the verdict forms, and in closing argument, and evidence against defendant was strong.  Cush v. Roe, C.A.9 (Cal.)2006, 203 Fed.Appx. 111, 2006 WL 2952876, Unreported.

State trial court’s failure to properly instruct jury, in prosecution for committing lewd or lascivious act on other child less than 14 years old, on sufficiency of circumstantial evidence to prove specific intent was harmless error, and thus did not warrant federal habeas relief, where testimony given for charged acts, by itself, was sufficient to show specific intent required for conviction.  Casillas v. Warden, of California State Prison at Avenal, California, C.A.9 (Cal.)2003, 80 Fed.Appx. 551, 2003 WL 22071288, Unreported, certiorari denied 124 S.Ct. 2032, 541 U.S. 989, 158 L.Ed.2d 493.

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56. Jury Deliberations in PC 288 Cases

Jury’s erroneous receipt of police report concerning defendant’s alleged surreptitious videotaping of adult female co-worker did not prejudice defendant in prosecution for lewd and lascivious acts upon child; in view of absence of factual connection between contents of police report and issues at defendant’s trial, it was not reasonably probable that he would have received favorable outcome had jurors not inadvertently viewed report.  People v. Rose (App. 2 Dist. 1996) 53 Cal.Rptr.2d 559, 46 Cal.App.4th 257, rehearing denied, review denied.

A unanimity jury instruction should have been given as to the acts supporting defendant’s five convictions of lewd and lascivious behavior with a child under the age of 14, where the testimony indicated that there were between 20 and 75 separate acts for which defendant could have been convicted.  People v. Arevalo-Iraheta (App. 4 Dist. 2011) 124 Cal.Rptr.3d 363, 193 Cal.App.4th 1574.

Trial court should have given unanimity instruction in prosecution for lewd and lascivious conduct on child in which victim testified to four distinct lewd acts, in light of changes in victim’s testimony concerning lewd incidents occurring on second of two days of occurrences, as well as fact that victim revealed third incident for first time at trial.  People v. Brown (App. 1 Dist. 1996) 50 Cal.Rptr.2d 407, 42 Cal.App.4th 1493.

Trial court’s error in failing to give unanimity instruction in prosecution for lewd and lascivious conduct on child in which defendant was convicted on two counts and victim testified to four distinct lewd acts was harmless since two molestations were consistently described as occurring on two separate occasions, on two separate days, one incident was never contender for second molestation count, and of two potential incidents on second day, in light of fact that jury rejected defendant’s only defense, there would be no reason for jury disagreement that either of second fondlings occurred.  People v. Brown (App. 1 Dist. 1996) 50 Cal.Rptr.2d 407, 42 Cal.App.4th 1493.

Defendant was not entitled to unanimous verdict as to particular manner in which felony-murder occurred and, therefore, was not entitled to unanimous verdict on nature of lewd or lascivious act committed or attempted against murder victim under age 14.  People v. Memro (1995) 47 Cal.Rptr.2d 219, 11 Cal.4th 786, 12 Cal.4th 783D, 905 P.2d 1305, modified on denial of rehearing, certiorari denied 117 S.Ct. 106, 519 U.S. 834, 136 L.Ed.2d 60.

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57. Sentencing and Punishment for PC 288

Statute did not mandate that defendant’s sentences of 15 years to life for each conviction for committing a lewd or lascivious act on a minor under the age of 14 years be served consecutively, although it did require imposition of separate terms for each victim.  People v. Simmons (App. 3 Dist. 2012) 148 Cal.Rptr.3d 554, 210 Cal.App.4th 778, review filed.

Imposition of consecutive sentences on defendant for convictions for committing a lewd or lascivious act on a minor under the age of 14 years and for exhibiting harmful matter to a minor for purposes of seduction violated defendant’s ex post facto rights, as statutory language relied upon to justify imposition of full-term consecutive terms on the convictions, which were not themselves enumerated in the sentencing statute, was not part of the sentencing statute when defendant committed the crimes.  People v. Simmons (App. 3 Dist. 2012) 148 Cal.Rptr.3d 554, 210 Cal.App.4th 778, review filed.

Four consecutive sentences for three counts of aggravated sexual assault on a child under the age of 14 years and for single county of forcible lewd and lascivious act on a child under the age of 14 years were mandatory, which involved the same victim on separate occasions.  People v. Maharaj (App. 3 Dist. 2012) 139 Cal.Rptr.3d 140, 204 Cal.App.4th 641, review denied.

Statutory requirements placed upon juvenile court when committing a minor to Department of Juvenile Justice (DJJ) explicitly mandate the consideration of a minor’s most recent offense in addition to prior offenses; juvenile court does not have the authority to disregard the events that bring or continue a minor under the jurisdiction of the juvenile court when determining appropriate disposition on adjudication based on those events.  In re G.C. (App. 4 Dist. 2007) 68 Cal.Rptr.3d 523, 157 Cal.App.4th 405, review denied.

In sentencing a defendant convicted of four counts of lewd and lascivious conduct on his two daughters under the age of 14, the trial court erred in ruling that it had no discretion to impose concurrent 15-year-to-life terms for three counts.  People v. Rodriguez (App. 4 Dist. 2005) 29 Cal.Rptr.3d 314, 129 Cal.App.4th 1401, 130 Cal.App.4th 1257, modified on denial of rehearing, review denied, appeal after new sentencing hearing 2006 WL 2361813, unpublished.

A defendant’s prior conviction for violating statute prohibiting any lewd or lascivious act upon a child under age 14 counts as a qualifying prior conviction under the One Strike law even if the defendant qualified for probation as to that prior offense.  People v. Hammer (2003) 134 Cal.Rptr.2d 590, 30 Cal.4th 756, 69 P.3d 436, appeal after new sentencing hearing 2004 WL 1946391, unpublished.

Defendant’s prior conviction for committing lewd or lascivious act upon a child under age 14 subjected him to sentencing under both the One Strike law and the Three Strikes law.  People v. Hammer (2003) 134 Cal.Rptr.2d 590, 30 Cal.4th 756, 69 P.3d 436, appeal after new sentencing hearing 2004 WL 1946391, unpublished.

Trial court had jurisdiction to resentence defendant to upper term for continuous sexual abuse count, after having sentenced him to middle term for that offense prior to appeal and remand; case law imposed limitation on how court’s sentencing discretion could be exercised, not limitation on court’s jurisdiction over resentencing.  People v. Burbine (App. 1 Dist. 2003) 131 Cal.Rptr.2d 628, 106 Cal.App.4th 1250, review denied, appeal from dismissal of hapeas corpus dismissed 445 Fed.Appx. 923, 2011 WL 3290007.

Trial court’s modification of its prior sentencing choices did violate equitable principles of res judicata in sexual abuse prosecution; in selecting middle term as principal term at initial sentencing, trial court did not “acquit” defendant of upper term, but, rather, court found that totality of circumstances justified selection of that particular term.  People v. Burbine (App. 1 Dist. 2003) 131 Cal.Rptr.2d 628, 106 Cal.App.4th 1250, review denied, appeal from dismissal of hapeas corpus dismissed 445 Fed.Appx. 923, 2011 WL 3290007.

Defendant’s prior conviction of assault with intent to commit lewd touching was serious felony under section of statute setting forth serious felony list, and thus, prior conviction qualified as strike under three strikes statutes in subsequent prosecution for lewd touching of minors, and annoying or molesting children; although defendant argued prior conviction did not qualify as strike because it was neither a violent nor a serious felony, defendant’s prior conviction necessarily involved attempt to commit lewd or lascivious act on child under age of 14, and thus, was serious felony.  People v. Deporceri (App. 6 Dist. 2003) 130 Cal.Rptr.2d 280, 106 Cal.App.4th 60, review denied.

One Strike law and Three Strikes law could be applied cumulatively for sentencing purposes in prosecution for lewd and lascivious conduct with a minor under 14 in which defendant had prior conviction for same offense that qualified both as a “circumstance” under One Strike law and as a prior serious or violent felony conviction under Three Strikes law, as well as a prior conviction for forcible oral copulation of a child under 14 that qualified as serious or violent felony under Three Strikes law.  People v. Snow (App. 4 Dist. 2003) 129 Cal.Rptr.2d 314, 105 Cal.App.4th 271, modified on denial of rehearing, review denied.

In regard to defendant convicted of ten counts of lewd and lascivious conduct with a minor under the age of 14, sentencing court should have exercised its discretion over more than two convictions when determining whether to impose consecutive or concurrent sentences under the three strikes law; it was impossible to discern the factual bases of jury’s verdict on six convictions, but at least four convictions were committed on the same occasion and arose from the same set of operative facts.  People v. Coelho (App. 6 Dist. 2001) 107 Cal.Rptr.2d 729, 89 Cal.App.4th 861, review denied.

In regard to defendant sentenced under three strikes law to ten consecutive terms for lewd and lascivious conduct with a minor under the age of 14, sentencing court’s determination that defendant had time to reflect between committing acts was adequate reason to justify imposing consecutive terms on two of six convictions that were committed on the same occasion and arose from the same set of operative facts.  People v. Coelho (App. 6 Dist. 2001) 107 Cal.Rptr.2d 729, 89 Cal.App.4th 861, review denied.

Oral copulation with a child under fourteen years of age by a person more than ten years older than the child was a “lewd or lascivious act” and thus “serious felony” and a strike under the Three Strikes Law on life imprisonment; that law defines a strike to include the serious felony of a lewd or lascivious act on a child under the age of fourteen years, and the lewd or lascivious act was not limited to the crime of willfully and lewdly committing any lewd or lascivious act with a child who is under the age of fourteen years.  People v. Murphy (2001) 105 Cal.Rptr.2d 387, 25 Cal.4th 136, 19 P.3d 1129, rehearing denied.

Statute which defines a lewd or lascivious act on a child under the age of fourteen years as a serious felony is not limited to acts that are lewd or lascivious because of the perpetrator’s intent; it applies to the general intent offense of oral copulation on a child, which is an act that is always harmful, always improper, and always lewd, regardless of the perpetrator’s intent.  People v. Murphy (2001) 105 Cal.Rptr.2d 387, 25 Cal.4th 136, 19 P.3d 1129, rehearing denied.

Remand was required, in case in which defendant received consecutive prison sentences under three strikes law on nine counts of lewd and lascivious acts upon a child under 14 years of age, in order to allow trial court to consider its discretion whether to run such convictions consecutive or concurrent to one another, where record affirmatively demonstrated that trial court had been misled and misunderstood scope of its sentencing discretion.  People v. Jeffries (App. 3 Dist. 2000) 98 Cal.Rptr.2d 903, 83 Cal.App.4th 15, review denied.

In sentencing defendant on nine counts of lewd and lascivious acts upon a child under 14 years of age, trial court was not required under three strikes law to impose consecutive sentences for offenses that were committed on the same occasion or arose from the same set of operative facts.  People v. Jeffries (App. 3 Dist. 2000) 98 Cal.Rptr.2d 903, 83 Cal.App.4th 15, review denied.

Evidence did not support an implied finding that each of defendant’s nine counts of lewd and lascivious acts upon a child under 14 years of age occurred on separate occasion, and thus trial court had discretion under three strikes law to run certain of the counts concurrent to others.  People v. Jeffries (App. 3 Dist. 2000) 98 Cal.Rptr.2d 903, 83 Cal.App.4th 15, review denied.

Any error, at sentencing for child molestation offenses, in considering unsworn statements by two alleged victims of uncharged offenses occurring over 20 years earlier, was not prejudicial, where defendant admitted in mental fitness reports to having sexually abused, or having behaved inappropriately with, those same individuals and a number of other children.  People v. Lamb (App. 1 Dist. 1999) 90 Cal.Rptr.2d 565, 76 Cal.App.4th 664, as modified.

Trial court’s errors in failing to articulate facts supporting, and thus incorrectly relying on, presence of multiple victims in imposing consecutive sentences on six counts of lewd conduct with children under 14 years of age with use of obscene or sexually explicit material did not compel remand;  court considered defendant’s lack of prior criminal history, the only mitigating factor presented to it, and articulated several concededly valid aggravating factors, any of which justified imposition of consecutive subordinate sentences.  People v. Coulter (App. 2 Dist. 1989) 257 Cal.Rptr. 391, 209 Cal.App.3d 506, rehearing denied and modified, review denied.

As applied to a 1978 offense of felony child molestation, imposition of a one-year, eight-month consecutive term, representing one-third the middle based term for a similar violation as of January 1, 1979, violated the ex post facto prohibition;  appropriate term was one year, four months.  People v. Smith (App. 5 Dist. 1985) 217 Cal.Rptr. 634, 171 Cal.App.3d 997.

Although trial court erred in striking special finding of “bodily injury” for purpose of denying probation to defendant convicted of lewd and lascivious act with a child under age of 14, resentencing was not required as trial court did not consider case appropriate for a state prison sentence and pending appeal defendant had completed the one-year term in county jail imposed as condition of probation and was gainfully employed and it would be cruel and unusual punishment to impose sentence for lower-base term of three years, thereby subjecting defendant to eight or nine months additional confinement.  People v. Holt (App. 4 Dist. 1985) 209 Cal.Rptr. 643, 163 Cal.App.3d 727.

Defendant’s sentence to state prison for total of 15 years for convictions of four counts of child molestation, 22 counts of oral copulation with minor, and one count of sodomy with minor, rather than ten years as representing twice base term for one child molestation conviction, was proper as within exception to statutory limitation for “violent felonies”.  People v. Stephenson (App. 4 Dist. 1984) 206 Cal.Rptr. 444, 160 Cal.App.3d 7.

Alien’s California conviction for committing a lewd act upon a child was an aggravated felony for purposes of his application for cancellation of removal.  Bustamante v. Gonzales, C.A.92007, 246 Fed.Appx. 459, 2007 WL 2471151, Unreported.

Defendant was precluded by failure to raise the issue in the trial court from asserting on appeal that the trial court improperly failed to make a separate statement of its reasons for imposing a full consecutive sentence for a forcible lewd act committed on same occasion and against same victim as an aggravated sexual assault on a child, after having given its reasons for finding consecutive sentencing appropriate.  People v. Quintanilla (App. 2 Dist. 2009) 87 Cal.Rptr.3d 889, 170 Cal.App.4th 406, review denied, habeas corpus denied 2010 WL 4220568.

Court adequately set forth the reasons for imposing consecutive sentences on defendant convicted of multiple counts of child molestation by stating that defendant was totally insensitive to the harm that he was causing to young victims, that he induced young victims with money, that he induced one victim to go out and bring other victims to him, and that he was danger to society.  People v. O’Connor (App. 2 Dist. 1992) 10 Cal.Rptr.2d 530, 8 Cal.App.4th 941, review denied.

Trial court improperly failed to provide any reasons for imposing aggravated terms for defendant’s 154 violations of this section and to provide reasons for imposing consecutive sentences on such counts.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Trial court, when imposing consecutive sentences for defendant’s 154 violations of this section, was not required to provide separate reasons for each consecutive sentence.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Provisions of § 264.1 permitting enhancement of punishments for acts committed by multiple defendants “acting in concert” were applicable in prosecution for rape, forcing child under age of 14 to orally copulate, and lewd and lascivious acts of child under age of 14, where evidence showed that there were two males and two young girls and that each male in turn sexually assaulted each girl;  element of multiple parties acting in concert was sufficient whether assailants were two or six.  People v. Gutierrez (App. 2 Dist. 1978) 145 Cal.Rptr. 823, 80 Cal.App.3d 829.

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58. Aggravating factors Considered in Sentencing under PC 288

Trial court did not improperly impose additional punishment based on defendant’s decision to exercise his constitutional trial rights by noting in its summary of sentencing factors that defendant’s acceptance of responsibility came only after he rejected two plea offers and went to trial, in imposing a full consecutive low term sentence for the offense of forcible lewd acts upon child under 14 years of age, which was committed on same occasion and against same victim as an aggravated sexual assault; in context, the court was merely explaining that defendant’s profession of remorse did not weigh more heavily in mitigation because it only surfaced after the jury had found him guilty.  People v. Quintanilla (App. 2 Dist. 2009) 87 Cal.Rptr.3d 889, 170 Cal.App.4th 406, review denied, habeas corpus denied 2010 WL 4220568.

Defendant’s prior offense of battery was a proper aggravating factor for the trial court to rely upon in imposing a full consecutive low term for the offense of forcible lewd acts upon child under 14 years of age, which was committed on same occasion and against same victim as an aggravated sexual assault, even though in the prior incident defendant entered a guilty plea to battery rather than to the sexual offense for which he had been charged; there was no serious doubt that the prior battery was sexually motivated.  People v. Quintanilla (App. 2 Dist. 2009) 87 Cal.Rptr.3d 889, 170 Cal.App.4th 406, review denied, habeas corpus denied 2010 WL 4220568.

Trial court did not violate defendant’s Sixth Amendment right to jury trial by imposing a consecutive sentence for a forcible lewd act committed on same occasion and against same victim as an aggravated sexual assault on a child, without a jury finding on aggravating factors.  People v. Quintanilla (App. 2 Dist. 2009) 87 Cal.Rptr.3d 889, 170 Cal.App.4th 406, review denied, habeas corpus denied 2010 WL 4220568.

Trial court did not rely on improper aggravating factors and abuse its discretion in imposing upper term for principal term at defendant’s resentencing in sexual abuse prosecution; aggravating factors cited by trial court on resentencing were not elements of crimes of which defendant was convicted, and even if court had erred in considering other aggravating factors, court’s decision to impose upper term was supported by aggravating factor that was beyond reproach and had not been present at prior sentencing.  People v. Burbine (App. 1 Dist. 2003) 131 Cal.Rptr.2d 628, 106 Cal.App.4th 1250, review denied, appeal from dismissal of hapeas corpus dismissed 445 Fed.Appx. 923, 2011 WL 3290007.

In sentencing defendant convicted of annoying or molesting child, trial court did not violate statute barring dual use of facts when court used defendant’s service of prior prison term for committing lewd act upon child as factor in aggravation of base term, even though that commitment resulted from same prior conviction which elevated current offense to felony status;  prior violation was not element of instant charge or “enhancement,” and prison commitment was not inherent in prior conviction.  People v. Whitten (App. 5 Dist. 1994) 28 Cal.Rptr.2d 123, 22 Cal.App.4th 1761, rehearing denied, review denied.

Imposition of upper term for child molestation was supported by court’s findings that defendant was insensitive to the harm that he was causing to the victims, that he induced young victims with money, and that he induced one victim to go out and bring other victims to him and that defendant was in danger to society.  People v. O’Connor (App. 2 Dist. 1992) 10 Cal.Rptr.2d 530, 8 Cal.App.4th 941, review denied.

Substantial basis existed in supplemental probation report for allegation that defendant had abused two additional children, permitting trial court, if it chose, to consider information in sentencing defendant pursuant to plea to lewd and lascivious acts with child.  People v. Bustamante (App. 1 Dist. 1992) 9 Cal.Rptr.2d 244, 7 Cal.App.4th 722.

Aggravating sentencing factor that crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing high degree of cruelty, viciousness or callousness, whether or not charged or chargeable as enhancement, could not be used to aggravate sentence for lewd conduct by force;  force, violence, duress, menace, or fear of immediate and unlawful bodily injury on victim was element of lewd conduct by force.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Aggravating sentencing factor that crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing high degree of cruelty, viciousness or callousness, whether or not charged or chargeable as enhancement, could not be used to aggravate sentence for lewd and lascivious conduct upon child.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Overwhelming and pathetic nature of victim’s testimony could not properly be used as aggravating factor when sentencing defendant convicted of 155 counts of lewd and lascivious conduct upon child and one count of lewd conduct by force;  evidence of defendant’s conduct could hardly be considered overwhelming, and nature of crime was not proper reason for sentencing choice.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Probation officer’s “poetic personal feeling” that defendant could not be rehabilitated could not properly be used as aggravating factor when sentencing defendant convicted of 155 counts of lewd and lascivious conduct upon child and one count of lewd conduct by force.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Trial court’s prefatory statement that defendant’s repeated deviant behavior showed inability or refusal to conform to mores of society could not properly be used as aggravating factor when sentencing defendant convicted of 155 counts of lewd and lascivious conduct upon child and one count of lewd conduct by force, since statement accurately described all persons convicted of lewd and lascivious conduct upon child, regardless of particular facts.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Trial court’s prefatory statement that defendant’s behavior was beyond all acceptable norms of society could not properly be used as aggravating factor when sentencing defendant convicted of 155 counts of lewd and lascivious conduct upon child and one count of lewd conduct by force, since statement described all persons convicted of lewd and lascivious conduct upon child, regardless of particular facts.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Age of victim, two and a half years, coupled with her close relationship to defendant, clearly supported court’s finding of vulnerability as aggravating factor in sentencing defendant to upper term of eight years for conviction of forcible child molestation.  People v. Garcia (App. 2 Dist. 1985) 212 Cal.Rptr. 822, 166 Cal.App.3d 1056, review denied.

 

“Vulnerability” of seven-year-old victim of lewd and lascivious acts of defendant flowing from parental relationship could be considered as an aggravating circumstance at defendant’s sentencing hearing.  People v. Garcia (App. 5 Dist. 1983) 195 Cal.Rptr. 494, 147 Cal.App.3d 1103.

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59. Enhancements of Penalties under PC 288

Defendant’s prior California conviction for lewd and lascivious acts involving a child categorically qualified as a conviction relating to sexual abuse, for purposes of increasing defendant’s statutory mandatory minimum sentence to ten years for possession of child pornography.  U.S. v. Farmer, C.A.9 (Cal.)2010, 627 F.3d 416, certiorari denied 131 S.Ct. 3062, 180 L.Ed.2d 892.

Defendant’s prior felony conviction for lewd or lascivious acts upon a child under the age of 14 years constituted a conviction for a “crime of violence” under Sentencing Guidelines section providing for 16-level enhancement for offense of unlawful re-entry into the United States, whether or not the offense included actual force as an element.  U.S. v. Medina-Maella, C.A.9 (Cal.)2003, 351 F.3d 944, certiorari denied 124 S.Ct. 2927, 542 U.S. 945, 159 L.Ed.2d 827.

Defendant’s sentence of 15 years to life for the offense of lewd act with a child under age 14, with findings of substantial sexual conduct with a child and great bodily injury, was not cruel or unusual in violation of Eighth Amendment, even if defendant committed the crime while drunk, where defendant had two prior convictions for driving under the influence, and the great bodily injury finding was based on defendant’s act of impregnating the victim.  People v. Meneses (App. 4 Dist. 2011) 123 Cal.Rptr.3d 387, 193 Cal.App.4th 1087, review denied.

Victim’s abortion, after she became pregnant as a result of defendant’s lewd acts, was not personally inflicted on victim, as required for “great bodily injury” sentence enhancement for offense of lewd act on child under age of 14; even though defendant encouraged victim to obtain abortion, defendant did not personally perform the abortion.  People v. Cross (2008) 82 Cal.Rptr.3d 373, 45 Cal.4th 58, 190 P.3d 706.

Jury could reasonably have found that 13-year-old victim of defendant’s lewd act suffered a significant or substantial physical injury, and thus a “great bodily injury” for sentence enhancement purposes, where victim became pregnant, had never given birth before, and carried the fetus for 22 weeks before having an abortion.  People v. Cross (2008) 82 Cal.Rptr.3d 373, 45 Cal.4th 58, 190 P.3d 706.

Defendant’s conviction in Nebraska of child sexual assault, which did not include specific intent element of California’s lewd or lascivious conduct with a child under 14 years of age statute, did not qualify as a serious felony conviction on the ground the minor would reasonably construe the touching as sexual, and thus the act would always be harmful and improper, obviating need for specific intent; such a touching in the abstract, which involves no definite or specific sexual act, does not qualify as one of the proscribed touchings that are always harmful and improper and are a felony on a showing of general intent only.  People v. Warner (2006) 47 Cal.Rptr.3d 1, 39 Cal.4th 548, 139 P.3d 475, as modified.

Defendant’s conviction in Nebraska of child sexual assault did not constitute a qualifying serious felony in California for imposition of a serious-felony or three strikes sentence enhancement, as it did not include all of the elements of a violation of California’s lewd or lascivious conduct with a child under 14 years of age statute; the Nebraska statute does not require proof of specific lewd intent, but only that touching could be construed as being for purpose of sexual arousal or gratification, while California statute requires the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused.  People v. Warner (2006) 47 Cal.Rptr.3d 1, 39 Cal.4th 548, 139 P.3d 475, as modified.

The trial court had a jurisdictional obligation, pursuant to “one strike” law, to impose at a minimum consecutive 25 years to life indeterminate sentences on a defendant convicted of 9 counts of forcible lewd conduct with a child on separate occasions, and who had been previously convicted of lewd conduct with a child.  People v. Chan (App. 2 Dist. 2005) 26 Cal.Rptr.3d 878, 128 Cal.App.4th 408, as modified, review denied, appeal after new sentencing hearing 2006 WL 1351577, unpublished, habeas corpus denied 2009 WL 1445898.

Defendant’s prior conviction for committing lewd or lascivious act upon a child under age 14, for which he was eligible and was granted probation, subjected him to a sentence of 25 years to life under the One Strike law for his present convictions for committing lewd acts upon a child under age 14 and committing lewd acts upon a child under age 14 by use of force.  People v. Hammer (2003) 134 Cal.Rptr.2d 590, 30 Cal.4th 756, 69 P.3d 436, appeal after new sentencing hearing 2004 WL 1946391, unpublished.

Prior conviction for lewd act with child under 14 could be used, in prosecution for same offense, to impose sentence of 25 years to life under One Strike law for sexual offends and could also be used, in combination with another prior conviction for forcible oral copulation with a child under 14, to triple the One Strike sentence under the Three Strikes law.  People v. Snow (App. 4 Dist. 2003) 129 Cal.Rptr.2d 314, 105 Cal.App.4th 271, modified on denial of rehearing, review denied.

Prior convictions for lewd conduct with a child under 14 and forcible oral copulation with a child under 14, which were used in prosecution for lewd conduct with child under 14 to impose sentence of 25 years to life under One Strike Law and to triple that sentence under Three Strikes law, could also be used under habitual criminal provision to impose two five-year sentence enhancements for the two prior serious felonies.  People v. Snow (App. 4 Dist. 2003) 129 Cal.Rptr.2d 314, 105 Cal.App.4th 271, modified on denial of rehearing, review denied.

Sentence of 25 years to life, imposed under “Three Strikes” law upon third-strike conviction for felony petty theft in connection with the stealing of a magazine, did not raise an inference of gross disproportionality, and thus did not violate Eighth Amendment prohibition against cruel and unusual punishment, where 38-year-old defendant had prior strikes for first degree burglary and lewd conduct with a child under 14, had been in constant contact with criminal justice system since the age of maturity, and had violated parole four times.  People v. Romero (App. 4 Dist. 2002) 122 Cal.Rptr.2d 399, 99 Cal.App.4th 1418, review denied.

 

Doubling of defendant’s 25-year-to-life one strike sentence for forcible lewd acts upon a child, by reason of same prior offense for which his one strike sentence was imposed, was improper and could not be sustained, where prior conviction for lewd conduct was only allegation pled and proved in support of a one strike sentence.  People v. Johnson (App. 4 Dist. 2002) 116 Cal.Rptr.2d 742, 96 Cal.App.4th 188, appeal after new sentencing hearing 2003 WL 22010536, unpublished.

Trial court properly used same prior felony conviction for lewd conduct to impose a 25-year-to-life sentence under the one strike law and also to double defendant’s determinate terms under the three strikes law; defendant’s past violation for lewd conduct was serious felony under the three strikes law, which qualified defendant for possible punishment as recidivist as to remaining present convictions not sentenced under one strike law.  People v. Johnson (App. 4 Dist. 2002) 116 Cal.Rptr.2d 742, 96 Cal.App.4th 188, appeal after new sentencing hearing 2003 WL 22010536, unpublished.

Trial court properly used defendant’s prior felony conviction of lewd conduct to impose five-year serious felony enhancement, under statute providing alternative sentencing scheme for certain qualified repeat sexual offenders; five-year enhancement was mandated to be added to defendant’s sentence in any case where defendant was convicted of serious felony and had previously suffered serious felony conviction.  People v. Johnson (App. 4 Dist. 2002) 116 Cal.Rptr.2d 742, 96 Cal.App.4th 188, appeal after new sentencing hearing 2003 WL 22010536, unpublished.

Trial court properly used defendant’s prior felony conviction of lewd conduct to elevate four counts of child molestation to felonies; defendant’s prior conviction was not used as an aggravating circumstance to increase his sentence on misdemeanor child molestation counts, but rather was used to impose alternative felony sentencing provision of child molestation statute, due to his status as a repeat offender, and limiting language of one strike law only pertained to alternative sentencing laws and enhancements for the current one strike offense, and not to counts of child molestation for which defendant was convicted.  People v. Johnson (App. 4 Dist. 2002) 116 Cal.Rptr.2d 742, 96 Cal.App.4th 188, appeal after new sentencing hearing 2003 WL 22010536, unpublished.

Enhancement of defendant’s sentence for forcible lewd acts upon a child should have been stricken, rather than stayed, pursuant to statute governing offenses punishable in different ways by different provisions of law; statute applied only to criminal acts or omissions and not to the fact of existence of prior felony conviction which triggered recidivist sentencing provisions.  People v. Johnson (App. 4 Dist. 2002) 116 Cal.Rptr.2d 742, 96 Cal.App.4th 188, appeal after new sentencing hearing 2003 WL 22010536, unpublished.

Sexual intercourse with child under age of 14 was lewd and lascivious act that fell within same family of offenses that, when committed against child under age of 14, was always harmful, always improper, and always lewd regardless of perpetrator’s intent, and thus prior Oregon conviction for sexual intercourse with child under age of 14 met criteria for “serious felony,” so as to justify increased punishment for subsequent offense under “Three Strikes” law, even though Oregon statute did not require intent for offense, and “Three Strikes” law contained specific reference to statute that contained intent requirement for such conduct, given fact that general definition of qualifying prior offenses included lewd or lascivious acts on child under age of 14 years without intent requirement.  People v. Fox (App. 5 Dist. 2001) 112 Cal.Rptr.2d 907, 93 Cal.App.4th 394.

In regard to defendant sentenced under three strikes law to ten consecutive terms for lewd and lascivious conduct with a minor under the age of 14, remand for resentencing was not required, even though sentencing court could have exercised its discretion and imposed concurrent sentences on three of the convictions; numerous aggravating factors justified the consecutive sentences, and sentencing court stated that it would impose consecutive sentences even if it had discretion with respect to all ten convictions.  People v. Coelho (App. 6 Dist. 2001) 107 Cal.Rptr.2d 729, 89 Cal.App.4th 861, review denied.

Sentence to state prison for 30 years to life upon conviction of child molestation and felony annoying or molesting child under the age of 18 was not cruel or unusual punishment, and it was not merely current offense but defendant’s recidivist’s behavior which justified imposed punishment;  recidivist behavior consisted of unremitting sexual depredation of child resulting in defendant’s conviction of 15 felonies.  People v. Diaz (App. 2 Dist. 1996) 49 Cal.Rptr.2d 252, 41 Cal.App.4th 1424, review denied.

Defendant’s prior convictions could not be used both to enhance and to impose aggravated term, when sentencing defendant who was convicted of 155 counts of lewd and lascivious conduct upon child and one count of lewd conduct by force.  People v. Fernandez (App. 6 Dist. 1990) 276 Cal.Rptr. 631, 226 Cal.App.3d 669, review denied.

Allegation of use of force in information expressly pled to preclude grant of probation could not also add an element to offense charged, committing a lewd and lascivious act upon a child under the age of 14 years, so as to increase term of confinement to which defendant found not guilty by reason of insanity was potentially subject, in that it would be disruptive of orderly procedure if, despite its limited postconviction purpose, probation restriction allegation was to be considered by fact finder in determining guilt and constitutionally adequate notice of serious consequences that might arise because of allegation was not provided.  People v. Smith (App. 3 Dist. 1984) 207 Cal.Rptr. 134, 160 Cal.App.3d 1100.

Where enhancement of defendant’s punishment for sex offenses under both § 667.5 providing for enhancement for each prior separate prison term and § 667.6 providing for enhancement when defendant has been convicted previously of any enumerated forcible sex offense was error, and trial court’s oral pronouncement of sentence indicated desire to impose greater of two punishments should any of enhancements be invalidated, three-year enhancement imposed pursuant to § 667.5 providing enhancement for each prior separate prison term would be stricken.  People v. Carter (App. 3 Dist. 1983) 193 Cal.Rptr. 193, 144 Cal.App.3d 534.

Defendant’s prior California conviction for lewd or lascivious acts with a child under 14 years of age qualified as a crime of violence providing for application of 16-level enhancement under the Sentencing Guidelines.  U.S. v. Nieto-Resendiz, C.A.9 (Cal.)2009, 357 Fed.Appx. 962, 2009 WL 4884884, Unreported, certiorari denied 130 S.Ct. 3526, 177 L.Ed.2d 1107.

 

District Court properly imposed sixteen-level sentencing enhancement for defendant’s prior conviction for lewd or lascivious acts under California Penal Code, since prior conviction categorically constituted “crime of violence.”  U.S. v. Cabrera-Alejandre, C.A.9 (Cal.)2009, 334 Fed.Appx. 816, 2009 WL 1566850, Unreported, certiorari denied 130 S.Ct. 1548, 176 L.Ed.2d 139.

Prior California conviction for lewd acts with a child under 14 qualified as a crime of violence, warranting 16-level enhancement for defendant convicted of illegal re-entry after deportation.  U.S. v. Ceron-Escobar, C.A.9 (Cal.)2007, 239 Fed.Appx. 339, 2007 WL 1852183, Unreported, certiorari denied 128 S.Ct. 526, 552 U.S. 1006, 169 L.Ed.2d 367.

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60. Sex Offender Registration for PC 288 Offense

The provision of the sex offender registration statute which denies the automatic registration relief conveyed by a certificate of rehabilitation to persons convicted of unlawful oral copulation with a minor over the age of 16, although such relief is available to those convicted of unlawful sexual intercourse with a minor over the age of 16, results in the denial of equal protection, since the two classes are similarly situated.  D.M. v. Department of Justice (App. 1 Dist. 2012) 147 Cal.Rptr.3d 798, 209 Cal.App.4th 1439.

On sex offender’s petition for writ of mandate, offender did not make the necessary prima facie showing to justify discovery on his claim that his conviction of lewd acts on a child under the age of 14, which required mandatory lifetime sex offender registration, resulted from discriminatory prosecution in violation of equal protection, with evidence that an older defendant who had been charged with multiple counts of the same offense against a younger victim was allowed to plead no contest to one count of unlawful sexual intercourse without sex offender registration, absent evidence of any invidious criterion that the district attorney’s office used when it required offender to plead no contest to lewd acts.  People v. Tuck (App. 1 Dist. 2012) 139 Cal.Rptr.3d 407, 204 Cal.App.4th 724.

When a minor is committed to Department of Juvenile Justice (DJJ) for engaging in sexual intercourse with a child under the age of 14, the minor must register as a sex offender.  In re G.C. (App. 4 Dist. 2007) 68 Cal.Rptr.3d 523, 157 Cal.App.4th 405, review denied.

Minor was properly committed to Department of Juvenile Justice (DJJ) based on admitted offense of engaging in sexual intercourse with child under age of 14, which was subject of current juvenile petition, thus requiring minor to register as sex offender, rather than aggregating the maximum confinement periods for his previous non-sexual offenses and committing him to DJJ based only upon those crimes in order to avoid registration requirement; juvenile court did not have authority to disregard current offense.  In re G.C. (App. 4 Dist. 2007) 68 Cal.Rptr.3d 523, 157 Cal.App.4th 405, review denied.

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61. Probation Requirements for PC 288

Probation conditions for the offense of lewd act with a child under age 14, prohibiting hitchhiking, picking up hitchhikers, accepting rides from any motorist in any place open to the public, and giving rides to pedestrians were not unconstitutionally overbroad, since the nature of the crime for which probationer was convicted made it reasonable to restrict him from opportunities to be in a car alone with a minor.  People v. Moses (App. 4 Dist. 2011) 131 Cal.Rptr.3d 106, 199 Cal.App.4th 374.

Probation conditions for the offense of lewd act with a child under age 14, prohibiting probationer from having contact with occupants in vehicles of any city in the county while a pedestrian, and prohibiting him from being in contact with pedestrians while in a vehicle on a public street or highway, were unconstitutionally overbroad, as they prohibited otherwise legal activities and had no relationship to the crime of which defendant was convicted.  People v. Moses (App. 4 Dist. 2011) 131 Cal.Rptr.3d 106, 199 Cal.App.4th 374.

Probation condition for the offense of lewd act with a child under age 14, prohibiting marrying anyone who had children under the age of eighteen unless approved in advance and in writing by the probation officer, violated probationer’s constitutional right to marry.  People v. Moses (App. 4 Dist. 2011) 131 Cal.Rptr.3d 106, 199 Cal.App.4th 374.

Probation conditions for the offense of lewd act with a child under age 14, restricting contact with “minors” and “persons under the age of 18,” were not unconstitutionally vague in using the two terms interchangeably, even though the better practice would be for the trial court to conform the terms used in its probation conditions.  People v. Moses (App. 4 Dist. 2011) 131 Cal.Rptr.3d 106, 199 Cal.App.4th 374.

Any error in probation condition which prohibited defendant from being in the “presence” of minors, rather than “associating” with minors, was harmless, as undisputed testimony that defendant took his two-year-old son to the pool at his apartment complex and played with several children, ages three to nine, who were also at the pool, indicated that defendant knowingly associated with persons he knew or reasonably should have known to be under the age of 18 without a responsible adult present who had been previously approved by the probation department.  People v. Urke (App. 3 Dist. 2011) 128 Cal.Rptr.3d 405, 197 Cal.App.4th 766.

The sentencing court is unable to make a finding that a “grant of probation is in the best interest of the child” victim of a lewd act, and thus is unable to sentence the defendant who committed the lewd act to probation, if sentencing takes place after the victim becomes an adult.  People v. Wills (App. 4 Dist. 2008) 73 Cal.Rptr.3d 104, 160 Cal.App.4th 728, review denied.

In determining whether it would be in the “best interest” of the child victim of lewd acts to sentence the defendant to probation, the sentencing court must evaluate the circumstances existing at the time of sentencing, not the circumstances existing at the time the defendant molested the victim.  People v. Wills (App. 4 Dist. 2008) 73 Cal.Rptr.3d 104, 160 Cal.App.4th 728, review denied.

Probation condition imposed on defendant convicted of registerable sex offense of committing lewd act on minor, prohibiting him from leaving county for any purpose, was unconstitutional restriction on defendant’s right to intrastate travel; no consideration was given to defendant’s employment which sometimes required him to drive to locations in other counties, and prohibition bore no reasonable relation to defendant’s crime.  People v. Smith (App. 2 Dist. 2007) 62 Cal.Rptr.3d 316, 152 Cal.App.4th 1245.

Defendant’s constitutional right to have a jury determine every fact that increases the punishment for his crime, molesting children under age of 14, was not violated by absence of jury finding that defendant was ineligible for probation; finding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency.  People v. Benitez (App. 3 Dist. 2005) 26 Cal.Rptr.3d 262, 127 Cal.App.4th 1274, rehearing denied, review denied.

Trial court’s error in determining that defendant was ineligible for probation under statute which required proof of “substantial sexual conduct,” required remand for resentencing on convictions for commission of a lewd or lascivious act upon a child; no such conduct was charged or found true by the jury.  People v. Bruce G. (App. 3 Dist. 2002) 118 Cal.Rptr.2d 890, 97 Cal.App.4th 1233.

Trial court incorrectly ruled that availability of probation for defendant convicted of being more than ten years older than 14-year-old victim and committing lewd and lascivious acts upon her could be based in part upon whether probation would be in best interest of victim;  criterion applied to granting of probation under another statute, covering defendants committing substantial sexual conduct with victim under age of 11.  People v. Sherrick (App. 2 Dist. 1993) 24 Cal.Rptr.2d 25, 19 Cal.App.4th 657, modified on denial of rehearing.

Waiver of right to appeal, signed after defendant was convicted of committing lewd acts upon minor, did not preclude appeal of error regarding defendant’s eligibility for probation, made after waiver was executed.  People v. Sherrick (App. 2 Dist. 1993) 24 Cal.Rptr.2d 25, 19 Cal.App.4th 657, modified on denial of rehearing.

Case involving criminal sexual activity with minor would be remanded, in order to correct trial court’s error regarding availability of probation, even though due to time already spent by defendant in prison, and conduct credits he may have earned, it appeared as though his release on parole was imminent;  in event that trial court would grant probation on remand, offense could theoretically be reduced to misdemeanor.  People v. Sherrick (App. 2 Dist. 1993) 24 Cal.Rptr.2d 25, 19 Cal.App.4th 657, modified on denial of rehearing.

Trial court did not abuse its discretion, in sentencing defendant convicted of incest and a lewd and lascivious act on a child under the age of 14 for acts involving his daughter, by finding that there was no recognized treatment program for defendant and that there was a physical threat to the victim if the defendant was returned to the home, thus warranting the sentence of imprisonment as opposed to probation, where the defendant had possessed a gun for uncertain purposes and by the time of sentencing had already joined his wife in blaming the victim for his arrest, and where there was no local treatment program for child molesters.  People v. Lucero (App. 5 Dist. 1984) 201 Cal.Rptr. 99, 154 Cal.App.3d 245.

Where defendant who was convicted of commission of lewd and lascivious act upon a child under the age of 14 years had violated this section in most culpable manner, by orally copulating young boys, and, by his own admission, had done so repeatedly for a year with at least two victims, where defendant had three prior felony convictions, each of which was based on same offense, where while released on bail pending trial, defendant was arrested for committing another act of oral copulation in violation of § 288a, and where, despite defendant’s good intentions, he was currently neither employed nor attending school, and where defendant was not likely to benefit from treatment, regardless of treatment setting, trial court abused its discretion in granting probation to defendant.  People v. Warner (1978) 143 Cal.Rptr. 885, 20 Cal.3d 678, 574 P.2d 1237.

Denial of probation to defendant, who was convicted of committing lewd and lascivious act on child under age of 14, who had actual contact of sexual intercourse with victim with possible resulting psychiatric damage to victim, and diagnostic study of whom revealed, inter alia, that defendant had severe antisocial personality and was sexually deviate, was not abuse of discretion nor arbitrary determination.  People v. Kingston (App. 2 Dist. 1974) 118 Cal.Rptr. 896, 44 Cal.App.3d 629.

Where § 1203 permitted granting of probation to defendant convicted of violating §§ 288, 288a only in unusual cases with concurrence of district attorney, judge could not base his finding of defendant’s ineligibility for probation on fact that district attorney expressed opposition but rather had to make independent determination that the case was not an unusual one within meaning of the § 1203.  People v. McGill (App. 4 Dist. 1968) 65 Cal.Rptr. 482, 257 Cal.App.2d 759.

Defendant’s conviction for a violation of this section, punished by two months in county jail, and subsequently set aside with the information dismissed and defendant released from all penalties and disabilities, was nevertheless a prior felony within § 1203 prohibiting probation to anyone guilty of violation of this section who has previously been convicted of a felony, and § 17 defining felonies and misdemeanors was not applicable.  People v. Walters (App. 1 Dist. 1961) 11 Cal.Rptr. 597, 190 Cal.App.2d 98.

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62. Restitution as a Punishment for PC 288 Offense

Defendant was entitled to credit in restitution order for funds which had been lodged with the court on behalf of defendant and ordered released to victim; court failed to give defendant credit for those funds when it issued the abstract of judgment and writ of execution.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

Trial court could base restitution award of noneconomic damages on 15 years of abuse by defendant, even if defendant was only convicted of seven years of abuse, ending when victim turned 15 years old, as court was searching for a way to quantify the victim’s pain and suffering and psychological harm, which did not end when the abuse ended.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

Restitution order for $750,000 in noneconomic damages for years of sexual abuse did not shock the conscience or suggest passion, prejudice or corruption on the part of the trial court, and thus was proper for defendant convicted of committing a lewd act on a child under the age of 14.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

District attorney’s presence at restitution hearing following defendant’s conviction for committing a lewd act on a child under 14 was sufficient to satisfy obligation to the people to seek a just and fair result, even if attorney was unfamiliar with the case and did not present evidence or argument; court would presume that, if the presentation by victim’s attorney had differed from the People’s interests, the district attorney would have made that known, and district attorney was briefed by other deputy district attorney on the “concept” of the restitution hearing and heard the evidence and argument presented by the victim’s attorney and the defendant.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

Victim was entitled to have her attorney present evidence and argument at restitution hearing following defendant’s conviction for committing a lewd act on a child under 14, and that involvement did not invade the exclusive province of the prosecutorial authority of the district attorney, who was also present at the hearing.  People v. Smith (App. 3 Dist. 2011) 129 Cal.Rptr.3d 910, 198 Cal.App.4th 415, review denied.

State’s failure to clarify whether sentencing court had intended to impose an additional $5,000 restitution fine to be deposited into the Victim-Witness Assistance Fund, beyond the general $10,000 limit on restitution fines in felony sentences, waived any right to claim error, and thus, trial court could impose only a $10,000 restitution fine.  People v. Valentine (App. 2 Dist. 2001) 113 Cal.Rptr.2d 748, 93 Cal.App.4th 1241, review denied.

62. Fines Imposed for PC 288 Offense

A conviction under California law for lewd or lascivious acts on a child of 14 or 15 years by a person at least ten years older than the child categorically constitutes neither “sexual abuse of a minor” nor “statutory rape” and therefore does not qualify as a prior conviction for a crime of violence, for purposes of a sixteen-level sentencing guidelines offense level increase in a defendant’s sentencing for reentry into the United States after removal.  U.S. v. Castro, C.A.9 (Cal.)2010, 599 F.3d 1050, withdrawn from bound volume, amended and superseded 607 F.3d 566.

Under categorical approach for determining character of a prior conviction, California offense of lewd or lascivious acts on a child aged 14 or 15 by a person at least ten years older, for which defendant had prior conviction, was broader than generic offense of sexual abuse of a minor, and thus, it did not qualify under sentencing guidelines as conviction for crime of violence of sexual abuse of a minor, for purposes of 16-level offense level increase for a prior conviction for a crime of violence in defendant’s sentencing for attempted reentry after removal; California statute under which defendant was convicted neither addressed sexual conduct with younger children, which was per se abusive, nor expressly included physical or psychological abuse as element of crime.  U.S. v. Castro, C.A.9 (Cal.)2010, 599 F.3d 1050, withdrawn from bound volume, amended and superseded 607 F.3d 566.

Under categorical approach for determining character of a prior conviction, California offense of lewd or lascivious acts on a child aged 14 or 15 by a person at least ten years older, for which defendant had prior conviction, was broader than generic offense of statutory rape, and thus, it did not qualify under sentencing guidelines as a conviction for crime of violence of statutory rape, for purposes of 16-level offense level increase for a prior conviction for a crime of violence in defendant’s sentencing for attempted reentry after removal; California statute under which defendant was convicted did not require a sexual act as an element of the offense, instead requiring only a lewd or lascivious act.  U.S. v. Castro, C.A.9 (Cal.)2010, 599 F.3d 1050, withdrawn from bound volume, amended and superseded 607 F.3d 566.

Trial court, once it imposed sex offender fine against defendant who was convicted of 10 counts of committing a lewd act upon a child, was duty bound to also require state and county statutory penalty assessments.  People v. Stewart (App. 2 Dist. 2004) 12 Cal.Rptr.3d 171, 117 Cal.App.4th 907, as modified.

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63. Sentencing and Punishment for Separate but Included Offenses Under PC 288

Coercion element of offense of committing a lewd or lascivious act on a child was supported by evidence that victim performed sexually gratifying acts on defendant because she feared defendant would tell her grandmother that she had taken or attempted to take money from bedroom shared by grandmother and defendant.  People v. Perez (App. 6 Dist. 2010) 105 Cal.Rptr.3d 749, 182 Cal.App.4th 231, review denied.

Defendant’s commission of a lewd or lascivious act on a child by force or fear was punishable by life imprisonment under “One Strike” sentencing scheme based on convictions in same case for committing that offense against another victim, such that prosecution could commence at any time and was not subject to a six-year limitations period; “One Strike” scheme was not an enhancement of the usual maximum penalty for the offense, but rather set out an alternative penalty based on other criminal conduct that trier of fact had found to have occurred.  People v. Perez (App. 6 Dist. 2010) 105 Cal.Rptr.3d 749, 182 Cal.App.4th 231, review denied.

Crime of lewd or lascivious conduct against a child under 14 years of age, a predicate offense for “One Strike” sentencing, was not a lesser included offense of continuous sexual abuse, for purposes of determining applicability of “One Strike” law to case in which jury was never instructed as to elements of lewd or lascivious conduct against a child under 14 years of age and convicted defendant of continuous sexual abuse.  People v. Palmer (App. 2 Dist. 2001) 103 Cal.Rptr.2d 301, 86 Cal.App.4th 440, review denied.

Offenses of lewd and lascivious conduct and continuous child abuse were not interchangeable, for purposes of state’s attempt to apply “One Strike” sentencing statute to defendant convicted of continuous child abuse, where plain language of sentencing statute listed the former as a predicate offense and did not list the latter.  People v. Palmer (App. 2 Dist. 2001) 103 Cal.Rptr.2d 301, 86 Cal.App.4th 440, review denied.

Although defendant who sexually assaults child under age 14 can be convicted under statute proscribing lewd acts against children and any other applicable statute for same criminal act, he cannot be separately punished for each offense.  People v. Scott (1994) 36 Cal.Rptr.2d 627, 9 Cal.4th 331, 885 P.2d 1040, modified on denial of rehearing.

Statute protecting against multiple punishment did not preclude separate sentences on separate counts of lewd and lascivious acts upon a child under the age of 14 years, where none of the lewd acts were necessary for or incidental to any other charged lewd act.  People v. Bright (App. 4 Dist. 1991) 277 Cal.Rptr. 612, 227 Cal.App.3d 105, review denied.

Sentencing court did not err in imposing both upper term and consecutive sentences upon defendant who pled guilty to charges of sexual abuse of children, despite contention that court improperly relied on same facts in imposing both sentences, where, in imposing upper term on principal count, sentencing court relied on facts that defendant, as a day care center operator, occupied and took advantage of a position of trust and demonstrated callous disregard for ages and unsophistication of children, that victims were particularly vulnerable, and that three-year period of crimes demonstrated scheming, careful planning, and premeditation, while sentencing court relied on separate and distinct nature of each act involving different victims and different times in imposing consecutive sentences.  People v. Hetherington (App. 4 Dist. 1984) 201 Cal.Rptr. 756, 154 Cal.App.3d 1132.

In prosecution for burglary and numerous sex crimes, evidence was sufficient to sustain finding that it was defendant’s intent upon entry into room to steal money or property, and not to commit the sexual crimes, and thus the intent and objectives for the respective crimes were clearly divisible, and separate punishment for burglary and the sex crimes was proper.  People v. Murphy (App. 4 Dist. 1980) 168 Cal.Rptr. 423, 111 Cal.App.3d 207.

Where there were two separate and different acts of sexual misconduct, even though part of same episode, it was not improper to impose, without a stay, sentences on two oral copulation counts.  People v. Van de Water (App. 2 Dist. 1980) 166 Cal.Rptr. 321, 108 Cal.App.3d 166.

Where defendant was convicted on three counts charging that on three consecutive days defendant committed lewd and lascivious acts upon body of a minor and on three counts charging violation of Penal Code § 288a on basis of same conduct and it was ordered that sentence under one § 288a count was to run concurrently with sentence under first lewd and lascivious count and sentence under second lewd and lascivious count was to run consecutively with sentence under first lewd and lascivious count and sentences on other counts were to run concurrently with sentence under second lewd and lascivious count, judgment would be reversed insofar as sentence was imposed on § 288a counts.  People v. Lindsey (App. 2 Dist. 1967) 57 Cal.Rptr. 190, 249 Cal.App.2d 6.

Where defendant was convicted of forcible rape of a minor and of a violation of this section, which offenses were so closely connected in their nature and in time of their occurrence as to be, in effect, identical, judgment insofar as it imposed concurrent sentence for offense constituting breach of this section would be reversed.  People v. Ross (App. 5 Dist. 1965) 44 Cal.Rptr. 722, 234 Cal.App.2d 758, certiorari denied 86 S.Ct. 1947, 384 U.S. 1026, 16 L.Ed.2d 1032, rehearing denied 87 S.Ct. 20, 385 U.S. 892, 17 L.Ed.2d 124.

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64. Sentence and Punishment for Mentally Disordered Sex Offenders who violate PC 288

 

Differing treatment afforded persons convicted after January 1, 1982 of sex offenses against a person under 14, that is, commitment to Department of Corrections instead of commitment as a mentally disordered sex offender, as opposed to persons convicted of such offenses prior to that date, who were committed as mentally disordered sex offenders under Welf. & Inst. C. §§ 6316.1 and 6316.2 (repealed), providing that a person so committed could not be confined for a period longer than maximum term for which he could have been sentenced for the crime, but that extended commitment could be obtained under certain circumstances, does not constitute a denial of equal protection so as to require denial of petition of extend commitment, as a mentally disordered sex offender, of individual convicted prior to January 1, 1982, of sex crime against four-year-old female child.  People v. Superior Court of Los Angeles County (App. 2 Dist. 1982) 183 Cal.Rptr. 563, 132 Cal.App.3d 658.

Court had jurisdiction to sentence defendant who was convicted of violating this section where, after jury had found defendant guilty on both counts, proceedings were instituted alleging that he was a mentally disordered sex offender, reports were made by two physicians, a hearing was had, defendant was found to be a probable mentally disordered sex offender, criminal proceedings were adjourned and defendant was committed to state hospital for observation and diagnosis, after which criminal proceedings were reinstated following certification that defendant was not amenable to further treatment and that he was a danger to society.  People v. Bronson (App. 2 Dist. 1968) 70 Cal.Rptr. 162, 263 Cal.App.2d 831, certiorari denied 89 S.Ct. 1316, 394 U.S. 964, 22 L.Ed.2d 566.

Though petitioner was entitled to prevail in habeas corpus proceeding because his commitment to institution of department of corrections on ground that he was a mentally disordered sex offender was void because of lack of certification as required by Welf. & Inst.C. §§ 6302, 6304 (repealed) but petitioner stood convicted on his plea of guilty of lewd or lascivious acts on the body of a child under 14, he was not entitled to his liberty, and determination was required to be made to determine whether he was a mentally disordered sex offender.  In re Kramer (App. 2 Dist. 1967) 64 Cal.Rptr. 686, 257 Cal.App.2d 287.

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65. Procedure followed by the court for sentencing and punishment of PC 288 Offense

Any error in trial court’s alleged belief that consecutive terms were mandatory under the one strike law, for defendant’s seven counts of lewd and lascivious acts upon a child, was harmless to defendant under any legal standard, where the court unambiguously indicated that it was exercising its discretion in choosing to impose four consecutive terms and three concurrent terms, explaining that it had exercised its discretion in choosing to impose the consecutive terms based on a variety of aggravating factors.  People v. Valdez (App. 2 Dist. 2011) 124 Cal.Rptr.3d 376, 193 Cal.App.4th 1515, as modified, review denied.

Any error in trial court’s alleged belief that consecutive terms were mandatory under the one strike law, for defendant’s seven counts of lewd and lascivious acts upon a child, was harmless to defendant under any legal standard, where the court unambiguously indicated that it was exercising its discretion in choosing to impose four consecutive terms and three concurrent terms, explaining that it had exercised its discretion in choosing to impose the consecutive terms based on a variety of aggravating factors.  People v. Valdez (App. 2 Dist. 2011) 124 Cal.Rptr.3d 376, 193 Cal.App.4th 1515, as modified, review denied.

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66. Commitment as a Sexually Violent Predator for PC 288 Offense

Conviction for attempted lewd act upon a child under age 14, resulting in a finding that defendant was a mentally disordered sex offender (MDSO), was a qualifying prior conviction under Sexually Violent Predators (SVP) Act.  Garcetti v. Superior Court (App. 2 Dist. 2000) 102 Cal.Rptr.2d 703, 85 Cal.App.4th 1113, rehearing denied, review denied.

Any conviction resulting in a finding that a defendant is a mentally disordered sex offender (MDSO) finding qualifies as a prior conviction for purposes of the Sexually Violent Predators (SVP) Act.  Garcetti v. Superior Court (App. 2 Dist. 2000) 102 Cal.Rptr.2d 703, 85 Cal.App.4th 1113, rehearing denied, review denied.

Statute that rendered a conviction resulting in a mentally disordered sex offender (MDSO) finding a qualifying conviction for commitment under Sexually Violent Predators Act was not overbroad as applied to defendant whose MDSO finding was based upon a felony conviction of attempted lewd act on a child under age 14.  Garcetti v. Superior Court (App. 2 Dist. 2000) 102 Cal.Rptr.2d 703, 85 Cal.App.4th 1113, rehearing denied, review denied.

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67. Certificate of Rehabilitation and Governor’s Pardon

Certificate of rehabilitation and pardon that could be transmitted to Governor as application for full pardon was unavailable to sex offender, who had been convicted of lewd conduct with a victim under age 14 and oral copulation with a victim under age 14, under terms of statutory amendment that prohibited previously eligible sex offenders from obtaining such a certificate from superior court, even though offender committed his crimes and allegedly reformed before the amended statute took effect.  People v. Ansell (2001) 108 Cal.Rptr.2d 145, 25 Cal.4th 868, 24 P.3d 1174.

Statutory amendment prohibiting previously eligible sex offenders from obtaining from superior court a certificate of rehabilitation and pardon that could then be transmitted to Governor as application for full pardon did not trigger or deny ex post facto protection to offender whose crimes and convictions occurred prior to amendment; amendment did not increase penalty for offender’s crimes, but instead prevented him from using an additional but not exclusive procedure for seeking discretionary relief from Governor; disapproving  144 Cal.App.3d 143, 192 Cal.Rptr. 469.  People v. Ansell (2001) 108 Cal.Rptr.2d 145, 25 Cal.4th 868, 24 P.3d 1174.

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68. Conditions of Parole

Special condition of parole that prohibited parolee, who had been convicted of lewd conduct with child and annoying or molesting child, from possessing or having access to computers, the Internet, or camera equipment absent permission from Department of Adult Parole Operations (DAPO) was valid as being reasonably related to deterring future criminality; parolee had deliberately encrypted computer and withheld password so authorities could not ascertain whether Internet was involved in first offense, other offenses did involve computer use, and parolee was not denied all access to Internet.  In re Hudson (App. 1 Dist. 2006) 49 Cal.Rptr.3d 74, 143 Cal.App.4th 1, review denied.

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69. The State’s Requirement to Disclose Evidence that will be Presented at PC 288 Trial

State failed, in prosecution for committing lewd acts on child, to give statutorily required notice of intention to offer daughter’s statement to mother, under hearsay exception for statements by alleged victims of child abuse, sufficiently in advance of proceedings to provide a fair opportunity to defend against such a statement, where defense counsel was not informed of daughter’s statement or prosecution’s intent to introduce it under after jury selection concluded, and prosecutor did not inform defense of intention to invoke that hearsay exception until after mother had begun testifying.  People v. Roberto V. (App. 2 Dist. 2001) 113 Cal.Rptr.2d 804, 93 Cal.App.4th 1350.

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70. Admissibility of Evidence in PC 288 Case

Erroneous admission of testimony of defendant’s court-assigned interpreter, to effect that she had seen defendant moving his hands near his groin during victim’s testimony, was not harmless, and required reversal of defendant’s conviction of residential burglary and enhancement of his sentence for forcible lewd act upon a child by reason of his having committed residential burglary to further the lewd act, where prosecutor made highly inflammatory reference to defendant’s in-court actions during closing argument, appearance of defendant’s interpreter as witness likely confused jury, and evidence of defendant’s intent at time of entry into victim’s residence was largely circumstantial.  People v. Leon (App. 2 Dist. 2001) 110 Cal.Rptr.2d 776, 91 Cal.App.4th 812, modified on denial of rehearing.

Fact that evidence concerning defendant’s uncharged molestation of other child victims was over 20 years old, and that statements and testimony concerning those uncharged offenses were not made under oath or subject to cross-examination, did not render such evidence inherently unreliable so as to preclude its consideration on issue of whether to grant probation on molestation offenses to which defendant had pleaded guilty.  People v. Lamb (App. 1 Dist. 1999) 90 Cal.Rptr.2d 565, 76 Cal.App.4th 664, as modified.

Any error in admission of “fresh complaint” testimony of victims’ caregivers, in state court prosecution for aggravated sexual assault on a child under 14 years of age and more than 10 years younger than defendant and forcible lewd and lascivious conduct on child under 14 years of age, was harmless, where other properly admitted evidence was ample to support jury’s verdict.  Salazar v. Adams, C.A.9 (Cal.)2008, 291 Fed.Appx. 57, 2008 WL 3861888, Unreported.

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71. How much evidence is enough to convict an individual under PC 288?

Offense of lewd act on minor was committed when defendant placed his exposed penis on victim’s vulva, thereby touching her body with the specific intent to arouse, appeal to, or gratify defendant’s or victim’s sexual desires.  People v. Dunn (App. 4 Dist. 2012) 141 Cal.Rptr.3d 193, 205 Cal.App.4th 1086, review denied.

To determine the sufficiency of evidence to support a conviction or a capital sentencing special circumstance, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.  People v. Davis (2009) 94 Cal.Rptr.3d 322, 46 Cal.4th 539, 208 P.3d 78, habeas corpus dismissed 2001 WL 1006791, rehearing denied, as modified, certiorari denied 130 S.Ct. 1079, 175 L.Ed.2d 904.

Evidence at capital murder trial amply supported the offense and special circumstance of an attempted lewd or lascivious act upon child victim; there was evidence from which jury could infer that defendant had been stalking victim well in advance of his crimes, there was evidence from bindings and restraints and from defendant’s prior crimes that defendant had planned burglary and kidnapping of victim and had acted with a sexual motivation, state of victim’s pulled-up clothing and positioning evidenced a sexual purpose, and defendant’s statements indicated an effort to hide sexual contact with victim.  People v. Davis (2009) 94 Cal.Rptr.3d 322, 46 Cal.4th 539, 208 P.3d 78, habeas corpus dismissed 2001 WL 1006791, rehearing denied, as modified, certiorari denied 130 S.Ct. 1079, 175 L.Ed.2d 904.

Evidence was sufficient to support finding that defendant molested his seven-year-old stepdaughter by means of duress, as required to support conviction for three counts of committing a lewd act upon a child under the age of 14 by force, fear, or duress; reasonable inference could be made that defendant made an implied threat sufficient to support a finding of duress, based on evidence that stepdaughter feared defendant and was afraid that if she told anyone about the molestation, that defendant would harm or kill her, her mother or someone else, and other factors in support of finding of duress included the disparity between stepdaughter and defendant’s age and size, and defendant’s position of authority in the family.  People v. Veale (App. 4 Dist. 2008) 72 Cal.Rptr.3d 360, 160 Cal.App.4th 40, review denied.

Sufficient evidence supported finding, in Sexually Violent Predators Act (SVPA) proceeding, that defendant’s lewd act with 12-year-old boy involved substantial sexual conduct as required by SVPA; police and probation reports described defendant’s hand on victim’s crotch, and defendant admitted at time of conviction that he “fondled” victim’s penis.  People v. Carlin (App. 6 Dist. 2007) 58 Cal.Rptr.3d 495, 150 Cal.App.4th 322.

Evidence was sufficient to support finding that murder and rape victim was alive when raped to support convictions for rape and lewd act upon child under 14, as well as rape-murder special circumstance finding, even though experts reached different conclusions on issue; both testimony of pathologist and physical evidence supported conclusion that intercourse was against victim’s will and that she was alive at moment of penetration.  People v. San Nicolas (2004) 21 Cal.Rptr.3d 612, 34 Cal.4th 614, 101 P.3d 509, rehearing denied, certiorari denied 126 S.Ct. 46, 546 U.S. 829, 163 L.Ed.2d 79.

Sufficient evidence of force and duress supported defendant’s convictions for aggravated sexual assault and forcible lewd conduct against minor daughter, where victim was only nine years old and much smaller than defendant, sexual acts occurred in family home, videotape showed defendant directing and coaching reluctant victim what to do and victim complaining that defendant was hurting her, victim testified she was mad or sad about what he was doing to her, and victim further testified that defendant gave her money or gifts when they were alone together while instructing her not to tell anyone because he would get in trouble and could go to jail.  People v. Cochran (App. 4 Dist. 2002) 126 Cal.Rptr.2d 416, 103 Cal.App.4th 8, habeas corpus dismissed 2007 WL 2481456.

Evidence was sufficient to support conviction for four counts of attempting to engage in lewd conduct with minors; victims testified that they received vulgar phone calls from defendant and were asked what they would do for money, defendant made various sexual proposals to victims and asked victims questions that related whether victims “sucked dick” or did any sex acts for money, defendant asked victims to meet him at park, and jury had heard considerable evidence that thirty years earlier defendant had molested both of his stepdaughters.  People v. Herman (App. 1 Dist. 2002) 119 Cal.Rptr.2d 199, 97 Cal.App.4th 1369.

Evidence supported finding that it would not be an abuse of discretion to grant probation to defendant pursuant to convictions for committing a lewd and lascivious act on a child, and thus court’s error in determining that defendant was ineligible for probation required remand; psychological evaluation concluded defendant was suitable for probation and amenable to treatment, defendant presented numerous letters of support from family and friends, defendant expressed remorse and a willingness to restore his relationship with his daughters, and defendant had a long and stable work history.  People v. Bruce G. (App. 3 Dist. 2002) 118 Cal.Rptr.2d 890, 97 Cal.App.4th 1233.

Probable cause to believe that crime had been committed and that defendant was perpetrator of the offense was presented by testimony about statement of victim concerning the incident shortly after it occurred and the six-year-old victim’s identification of defendant as the offender and by hearsay declarations of the child to police to the effect that defendant had touched the victim ‘in my weenie.‘  People v. Daily (App. 2 Dist. 1996) 56 Cal.Rptr.2d 787, 49 Cal.App.4th 543, review denied.

There was sufficient evidence that defendant’s multiple sexual offenses against minor victim were committed during period alleged, June 1, 1988, through August 31, 1989, even though first offense occurred in summer of 1989 and victim said she did not know “for sure” whether second time that something happened was same summer as first time; a year earlier, when officer interviewed victim, victim was sure, and told officer that second act of intercourse occurred three weeks after first act, and victim testified that other alleged acts occurred same summer as second act of intercourse.  People v. Nwafor (App. 2 Dist. 1996) 53 Cal.Rptr.2d 564, 46 Cal.App.4th 39, rehearing denied, review denied.

Defendant was not denied his right to unanimous jury in case in which he was convicted of three of eight counts of committing lewd and lascivious acts upon his 13-year-old stepdaughter during nine-month period where there was substantial evidence to support convictions, all acts about which testimony was given were proscribed by criminal statute under which he was charged and occurred within three-year limitation period, and jury was instructed that they had to unanimously agree that defendant committed same specific act.  People v. Crow (App. 4 Dist. 1994) 33 Cal.Rptr.2d 624, 28 Cal.App.4th 440, review denied.

There was no requirement that reviewing court be able to determine from record whether, in returning three guilty verdicts on eight counts of committing lewd and lascivious acts upon 13-year-old, jury relied upon evidence of one type of lewd conduct as opposed to another.  People v. Crow (App. 4 Dist. 1994) 33 Cal.Rptr.2d 624, 28 Cal.App.4th 440, review denied.

Expert’s testimony was sufficient evidence to raise reasonable inference of corpus delicti of crime of committing lewd and lascivious act upon body of child under age of 14 years;  expert testified that adhesions and hymen size of child were consistent with child being victim of sexual abuse.  People v. Culton (App. 4 Dist. 1992) 14 Cal.Rptr.2d 189, 11 Cal.App.4th 363.

Inconsistencies and contradictions during course of thorough cross-examination of child witnesses did not indicate that defendant charged with several counts of forcible lewd conduct on child under age 14 was convicted of crimes completely different from the incidents described at preliminary hearing, even though witness’ trial testimony was somewhat inconsistent, suggesting inference that certain details were confused from one incident to another, where testimony at trial and preliminary hearing corresponded, and preliminary hearing testimony was read to jury so that jury could evaluate inconsistencies;  inconsistencies went to weight and credibility of testimony, not to question of notice of charges against defendant.  People v. Gil (App. 2 Dist. 1992) 4 Cal.Rptr.2d 697, 3 Cal.App.4th 653.

Inconsistencies in child witness’ testimony against defendant charged with several counts of lewd conduct on child under age 14 did not prejudice defendant’s ability to defend himself, despite contention that incidents testified to at trial were completely different from incidents described at preliminary hearing, where defendant’s defense was not specific alibi, but denial that molestations occurred at all.  People v. Gil (App. 2 Dist. 1992) 4 Cal.Rptr.2d 697, 3 Cal.App.4th 653.

Defendant’s convictions on 15 counts of lewd and lascivious acts with child under age of 14 were supported by sufficient evidence, despite defendant’s contention that victim’s testimony failed to establish with specificity either kind or number of lewd acts defendant committed;  physician testified that it would have taken at least six vaginal penetrations over period of time and at least 12 to 14 anal penetrations over six-month period to produce injuries and abnormalities he detected on examining victim.  People v. Newlun (App. 3 Dist. 1991) 278 Cal.Rptr. 550, 227 Cal.App.3d 1590, rehearing denied and modified, review denied, certiorari denied 112 S.Ct. 345, 502 U.S. 927, 116 L.Ed.2d 284.

In child molestation case, nonspecific or generic testimony, in which victim fails to specify precise date, time, place or circumstance, may be sufficiently substantial to sustain conviction.  People v. Jones (1990) 270 Cal.Rptr. 611, 51 Cal.3d 34, 51 Cal.3d 294, 792 P.2d 643, as modified, on remand 273 Cal.Rptr. 292.

Even assumption that victim’s testimony lacked sufficient specificity in tying particular sexual attacks to specific times, locations or charges would not negate fact that each element of charged offenses was supported by substantial evidence, in prosecution for incest and committing lewd and lascivious acts upon child under the age of 14.  People v. Avina (App. 2 Dist. 1989) 259 Cal.Rptr. 178, 211 Cal.App.3d 48, review denied.

In prosecution of alleged “resident child molester” on one count of lewd and lascivious conduct for each of ten months in which conduct was alleged to have occurred, evidence was insufficient as matter of law as to those counts of lewd and lascivious behavior for which no distinguishing characteristics of sexual intercourse with child victim were presented, barring retrial on reversal.  People v. Vargas (App. 5 Dist. 1988) 253 Cal.Rptr. 894, 206 Cal.App.3d 831, review denied.

State in prosecution for sexual molestation of child failed to meet burden of proof on three counts of lewd acts with child where victim’s testimony regarding counts was not specific as to any identifiable act occurring during time periods alleged and was only generic in nature.  People v. Luna (App. 5 Dist. 1988) 250 Cal.Rptr. 878, 204 Cal.App.3d 726.

State in defendant’s prosecution for sexual molestation of stepdaughter failed to meet burden of proof on counts alleging commission of act of oral copulation during one one-year period and act of sexual intercourse during another one-year period due to lack of any specific evidence as to particular act;  as to both offenses, victim was only able to testify that acts charged in fact occurred, and could not specify acts with particularity.  People v. Atkins (App. 5 Dist. 1988) 249 Cal.Rptr. 863, 203 Cal.App.3d 15.

Evidence of two-year-old victim’s spontaneous declaration, augmented by testimony of physician that victim had been subjected to trauma by means of a blunt instrument, constituted substantial evidence to support juvenile court’s finding that defendant had violated sexual assault statutes.  Matter of Damon H. (App. 3 Dist. 1985) 211 Cal.Rptr. 623, 165 Cal.App.3d 471.

Where the transcript of the preliminary examination reflected that a child of three years left her mother’s apartment and was found five minutes later with spermatozoa in her pants and vaginal area, and where a five-year-old boy, found competent to testify, stated that during that five-minute period the girl was in defendant’s apartment with defendant and that no other adults were present, this was sufficient evidence to raise a strong suspicion that defendant was guilty of the offense of child molestation.  People v. Orduno (App. 4 Dist. 1978) 145 Cal.Rptr. 806, 80 Cal.App.3d 738, certiorari denied 99 S.Ct. 849, 439 U.S. 1074, 59 L.Ed.2d 41.

Evidence, including disclosure that victim accepted ride with defendant, that he stopped on dead-end dirt road and raped her, and that she was 7 months pregnant, was sufficient to sustain conviction of lewd and lascivious acts.  People v. Smith (App. 4 Dist. 1966) 54 Cal.Rptr. 740, 246 Cal.App.2d 489.

In prosecution for violation of this section by committing offense on person of six year old girl, her testimony, not shown to have been fabricated, as to defendant’s acts, his admissions that he picked her up in his automobile and gave her money, and evidence of his previous conviction of similar offense, were sufficient to sustain conviction.  People v. Stanfield (App. 1956) 141 Cal.App.2d 836, 297 P.2d 517.

Facts that acts forming basis of prosecution on charge of committing lewd and lascivious acts upon a female child nine years old were of a revolting character did not prove that it was inherently improbable that defendant committed them.  People v. Carlson (App. 1946) 73 Cal.App.2d 933, 167 P.2d 812.

Fact that at the time acts forming basis for prosecution for committing lewd and lascivious acts upon a female child nine years old were alleged to have been committed there were other persons in close proximity did not justify reviewing court in declaring as matter of law that child’s testimony was inherently unbelievable.  People v. Carlson (App. 1946) 73 Cal.App.2d 933, 167 P.2d 812.

Prosecutrices’ testimony was sufficient to support conviction for commission of lewd acts with two females under 14 years old notwithstanding inconsistencies in some of their testimony, vagueness of their memories in some respects, and their failure to complain of defendant’s conduct for several months, in absence of anything to justify conclusion that such testimony was per se unbelievable and hence inherently improbable.  People v. Smittcamp (App. 3 Dist. 1945) 70 Cal.App.2d 741, 161 P.2d 983.

In trial for committing lewd or lascivious acts on body of ten year old girl, her direct testimony as to defendant’s acts and his manifest licentious and lewd conduct in taking pictures, introduced in evidence, of girl’s private parts, authorized jurors to reject testimony contradicting that of girl, disbelieve defendant’s testimony, and accept girl’s testimony as to immediate circumstances of alleged assault and actions constituting it, notwithstanding discrepancies between her testimony on preliminary examination and at trial.  People v. Schultz (App. 2 Dist. 1942) 49 Cal.App.2d 38, 120 P.2d 893.

Where inconsistencies in prosecutrix’ testimony were not explained and it was not disputed that child was told what to say by her mother and evidence in support of accused’s defense of alibi was uncontroverted, evidence was insufficient to sustain conviction of rape and violation of this section, relating to crimes against children.  People v. McCullough (App. 2 Dist. 1940) 38 Cal.App.2d 387, 101 P.2d 531.

In prosecution for lewd and lascivious conduct with a child, testimony of prosecutrix, 11 years of age, corroborated in essential respects by testimony of physician and which did not appear to be result of coaching and which was not so inherently improbable as to appear on its face false, was sufficient to sustain conviction.  People v. Gonzales (App. 3 Dist. 1939) 33 Cal.App.2d 482, 92 P.2d 482.

In prosecution for committing lascivious acts upon child, testimony of child, which contained inconsistencies as to commission of offense but contained no inconsistencies as to nature of lascivious acts, was held not inherently improbable so as to require reversal of conviction.  People v. Quinn (App. 2 Dist. 1936) 12 Cal.App.2d 752, 55 P.2d 1277.

Evidence in prosecution for aggravated sexual assault on a child under 14 years of age and more than 10 years younger than defendant, and forcible lewd and lascivious conduct on child under 14 years of age, was sufficient to permit any rational trier of fact to find essential elements of charged offenses beyond reasonable doubt.  Salazar v. Adams, C.A.9 (Cal.)2008, 291 Fed.Appx. 57, 2008 WL 3861888, Unreported.

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72. Evidence of the Age of the Victim

Following dismissal, at preliminary hearing, of certain charges of committing a lewd and lascivious act on a person who was fifteen years old based on masturbation incidents that complainant could not state occurred prior to her sixteenth birthday, defendant could not, as a matter of due process, be convicted on remaining charges of committing a lewd and lascivious act on a person who was fifteen years based on evidence of such masturbation incidents, which were admitted at trial as uncharged conduct to establish motive or intent; there was no indication at preliminary hearing that the prosecution intended to rely on generic testimony, it was clear that prosecutor intended that each charge be established by a specific incident, and there was no valid basis to challenge the dismissal and no attempt was made to refile charges based on masturbation incidents.  People v. Graff (App. 2 Dist. 2009) 87 Cal.Rptr.3d 827, 170 Cal.App.4th 345, as modified.

Evidence was insufficient to show that victim was 14 years old at time of abuse that occurred during month of victim’s 14th birthday, as required for conviction for committing a lewd act on a child of 14 or 15 years of age as charged, even though victim, whose birthday was in the middle of September, testified that defendant molested her at least twice during September; there was no evidence as to when defendant abused victim in September.  People v. Mejia (App. 2 Dist. 2007) 65 Cal.Rptr.3d 776, 155 Cal.App.4th 86.

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73. Evidence of the Age of the Defendant

Evidence was sufficient to support finding that victim was under age 16 as required to support conviction for lewd act upon a child who was 15 years old, although victim testified that she turned 16 in December, that she believed “about half” of her sexually explicit online chats with defendant happened in December, and only chat marked as an exhibit was the last chat victim had with defendant; victim also testified that chat described in exhibit occurred in September, and victim stated that she remembered she was 15 years old when she chatted with defendant online.  People v. Crabtree (App. 2 Dist. 2009) 88 Cal.Rptr.3d 41, 169 Cal.App.4th 1293, review denied, habeas corpus denied 2012 WL 2261116.

There was insufficient evidence that 11-year-old juvenile acted with specific intent sexually to arouse himself, to support finding that he committed felony lewd touching of victim under 14 years of age; there was no evidence juvenile had reached puberty or evidence of sexual arousal, rather record showed that juvenile’s conduct was more consistent with intent to annoy and obtain attention than with sexual arousal.  In re Jerry M. (App. 4 Dist. 1997) 69 Cal.Rptr.2d 148, 59 Cal.App.4th 289.

Testimony from both defendant and victim that when victim was five, defendant was adult man renting space from victim’s adult grandmother and defendant soon thereafter married victim’s mother, and defendant’s physical appearance and presence before jury provided sufficient circumstantial evidence that defendant was at least ten years older than victim to support his convictions of child molestation.  People v. Castaneda (App. 4 Dist. 1994) 36 Cal.Rptr.2d 844, 31 Cal.App.4th 197, review denied.

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74. Hearsay Evidence in PC 288 Cases

Reliance on victim’s hearsay statements contained in investigation reports made 10 years after conviction, to prove details of lewd act on child for which defendant in Sexually Violent Predators Act (SVPA) proceeding had been convicted, violated defendant’s due process right; defendant was impacted by outcome of proceeding, statements were not reliable as they were not spontaneous and were inconsistent with victim’s statements contemporaneous with prosecution, People objected to defendant’s request to call victim to testify, and absence of live testimony limited jury’s ability to assess victim’s credibility.  People v. Carlin (App. 6 Dist. 2007) 58 Cal.Rptr.3d 495, 150 Cal.App.4th 322.

Alleged statements by defendant’s three-year-old daughter to her mother, that her older sister and defendant had taught her the sexual conduct she was exhibiting and that she wanted to “play like Daddy played,” were “hearsay” as offered in prosecution for committing lewd acts on a child under 14; statements amounted to representations that defendant had molested his daughters and were not admissible for nonhearsay purpose of explaining daughter’s state of mind or explaining why mother subsequently asked questions of older daughter.  People v. Roberto V. (App. 2 Dist. 2001) 113 Cal.Rptr.2d 804, 93 Cal.App.4th 1350.

Court of Appeal would consider whether all three alleged statements by defendant’s young daughter suggesting defendant had sexually molested her and her sister were admissible, under evidence provision creating hearsay exception for statements by alleged victims of child abuse, in prosecution for committing lewd acts on a child, though defense counsel had only objected when daughter’s mother had testified to first statement; counsel could reasonably have assumed from denial of that objection that objections to the additional statements would have been futile.  People v. Roberto V. (App. 2 Dist. 2001) 113 Cal.Rptr.2d 804, 93 Cal.App.4th 1350.

Sexual behavior by defendant’s three-year-old daughter, in form of inappropriately kissing a toy and attempting to insert it into her vagina, was not “hearsay,” as related by girl’s mother in prosecution for committing lewd acts on a child; daughter’s conduct suggested she was playing a game rather than attempting to non-verbally communicate.  People v. Roberto V. (App. 2 Dist. 2001) 113 Cal.Rptr.2d 804, 93 Cal.App.4th 1350.

Trial court’s finding of corroboration, under evidence provision governing admission of hearsay statements by alleged victims of child sexual abuse, was supported by out-of-court admissions by defendant that he was a “sex addict,” that he had digitally penetrated another young girl, that he had a prior out-of-state conviction for an offense that would constitute lewd conduct with a child, and that he had a foot fetish.  People v. Eccleston (App. 1 Dist. 2001) 107 Cal.Rptr.2d 440, 89 Cal.App.4th 436, review denied.

Admission into evidence of the spontaneous declarations or recent complaints of a child too young to testify does not violate a defendant’s constitutional right to confront his accusers, in a prosecution for child molestation.  People v. Orduno (App. 4 Dist. 1978) 145 Cal.Rptr. 806, 80 Cal.App.3d 738, certiorari denied 99 S.Ct. 849, 439 U.S. 1074, 59 L.Ed.2d 41.

Three-year-old girl’s statements to her mother “the man wet my pants” and “that man stuck his pee pee in my bummy” were admissible in prosecution for child molestation, since the girl complained to her mother of defendant’s conduct, and since her statements, made immediately after she had left defendant’s apartment and while she was obviously in a state of excitement, were spontaneous declarations.  People v. Orduno (App. 4 Dist. 1978) 145 Cal.Rptr. 806, 80 Cal.App.3d 738, certiorari denied 99 S.Ct. 849, 439 U.S. 1074, 59 L.Ed.2d 41.

Testimony of a witness that ten-year-old victim immediately after running out of defendant’s house and into the street stated to his mother that the “man was sucking his thing”, was admissible in prosecution for lewd and lascivious conduct and oral copulation under either the spontaneous declaration exception to the hearsay rule, or under the “complaint” doctrine.  People v. Butler (App. 1 Dist. 1967) 57 Cal.Rptr. 798, 249 Cal.App.2d 799.

In prosecution for committing lewd acts with, and rape of, three-year-old child, wherein evidence concededly sustained conviction of rape, error in admitting child’s accusatory statements to her mother concerning lewd acts was not reversible, since proof of rape necessarily implied commission of lewd acts and there was no miscarriage of justice.  People v. O’Donnell (1938) 11 Cal.2d 666, 81 P.2d 939.

In prosecution for committing lewd acts with, and rape of, three-year-old child, child’s accusatory statements, made to child’s mother immediately after the offense, were not res gestae and were inadmissible.  People v. O’Donnell (1938) 11 Cal.2d 666, 81 P.2d 939.

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75. The Constitutional Right for the Defendant to Confront Witnesses under the Confrontation Clause

Hearsay statements by defendant’s three-year-old daughter suggesting molestation by defendant lacked sufficient trustworthiness to satisfy Confrontation Clause as offered in child sex abuse prosecution; while there was no apparent motive to fabricate and child’s behavior showed a knowledge beyond usual ken of children that age, it was unclear whether some statements may have been in response to leading questions, there was no showing daughter had repeated statements to any other person, and there was no evidence as to daughter’s tendency to tell the truth.  People v. Roberto V. (App. 2 Dist. 2001) 113 Cal.Rptr.2d 804, 93 Cal.App.4th 1350.

Confrontation Clause violation, arising from admission of hearsay statements by defendant’s three-year-old daughter suggesting he had sexually molested her and her older sister, was not harmless beyond a reasonable doubt in prosecution for committing lewd acts on a child; those statements provided strong corroborating evidence of accounts by older sister, which served as key evidence against defendant but contained significant inconsistencies.  People v. Roberto V. (App. 2 Dist. 2001) 113 Cal.Rptr.2d 804, 93 Cal.App.4th 1350.

Defendant’s confrontation rights were not violated in child sexual abuse prosecution when 11-year-old victim’s mother, who did not testify at trial, was allowed to sit next to victim as support person while he testified.  People v. Johns (App. 4 Dist. 1997) 65 Cal.Rptr.2d 434, 56 Cal.App.4th 550, review denied.

Admission of pretrial interviews of minor, who was sexual assault victim, did not violate confrontation clause, even though defendant asserted that law enforcement officials used highly suggestive interview tactics and victim could not remember certain details about assault on direct examination at trial; victim testified at trial and was subject to cross-examination and defendant made tactical decision not to cross-examine victim about those details, and, in fact, defendant used that to his advantage in closing argument.  Garcia v. Garcia, C.A.9 (Cal.)2002, 45 Fed.Appx. 768, 2002 WL 2022097, Unreported.

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76. Competency of Witnesses in PC 288 Cases

Pattern jury instruction stating that the jury should consider rejecting everything said by a witness who the jury determines has “deliberately lied” about something significant should not be modified to also suggest rejecting the testimony of a witness who the jury determines has “inaccurately testified,” particularly in cases in which children without fully developed language skills are witnesses, since inadvertent inaccuracy on a significant point does not indicate a lack of trustworthiness in the same way that a deliberate lie does, and other portions of the pattern instruction address credibility questions other than deliberate lying.  People v. Chue Vang (App. 3 Dist. 2009) 90 Cal.Rptr.3d 328, 171 Cal.App.4th 1120, review denied.

Six-year-old girl who knew her last name, her age, her birthdate, her class in school and name of her teacher and who understood trial court’s admonitions and who on direct examination clearly described surroundings and manner in which acts forming basis of prosecution for committing lewd and lascivious acts upon body of child were allegedly committed, was competent.  People v. Berry (App. 2 Dist. 1968) 67 Cal.Rptr. 312, 260 Cal.App.2d 649.

In prosecution for child molestation, trial court did not abuse its discretion in determining that an eight-year-old child, not a prosecutrix, was competent to testify notwithstanding her negative answer when asked if she feared getting a spanking if she told a lie, where child’s examination also established that she knew difference between a lie and truth, she thought something would happen if she told a lie, although she did not know what, and her soul would be hurt if she lied.  People v. McIntyre (App. 4 Dist. 1967) 64 Cal.Rptr. 530, 256 Cal.App.2d 894.

Where six year old girl stated on voir dire examination that if she did not tell the truth her mother would spank her, and she stated that she had heard of going to Heaven and that she did not think that she would ever go there, but explained that it was not because she did not tell the truth that she did not expect to go to Heaven, trial court did not abuse its discretion in permitting the girl to testify in prosecution under this section.  People v. Reeves (App. 4 Dist. 1954) 128 Cal.App.2d 410, 275 P.2d 158.

Ability to recollect and narrate, as demonstrated by voir dire examination and clear, coherent and plausible testimony subsequently given, and knowledge that she should tell the truth and would be punished if she did not were sufficient to qualify a girl nine years and two months of age to testify as a witness in prosecution for lewd and lascivious acts allegedly committed upon her, over objection that voir dire examination did not show that child knew the purpose of an oath, though she was unable to describe what happens to adults when they lie.  People v. Lamb (App. 1 Dist. 1953) 121 Cal.App.2d 838, 264 P.2d 126.

Where complaining witnesses, 8 and 5 years old, were asked by trial judge before being sworn the usual questions regarding their church and school attendance, their knowledge of God, obligation to tell truth, and the consequences of telling an untruth, permitting such witnesses to testify in prosecution for commission of lewd and lascivious acts with children was matter within the discretion of the trial judge.  People v. Norred (App. 1952) 110 Cal.App.2d 492, 243 P.2d 126, certiorari denied 73 S.Ct. 113, 344 U.S. 869, 97 L.Ed. 674.

In prosecution for lewd and lascivious acts committed on a 12 year old boy in theater, testimony of companion that he moved away from defendant after defendant had whispered something which he did not understand and had leaned over into his seat warranted using him as a witness, particularly where his testimony corroborated that of prosecuting witness.  People v. Dye (App. 3 Dist. 1947) 81 Cal.App.2d 952, 185 P.2d 624.

In prosecution for committing lewd or lascivious act on child’s body and contributing to minor’s delinquency, where record showed that complaining witness was duly sworn, that she was 11 years old and in public school grade commonly reached at that age at time of trial, and that she attended Sunday school and knew that she should not bear false witness against her neighbor and would be punished if she did not tell the truth, and transcript of evidence disclosed that she had definite recollection of episode in question and ability to relate correctly names, dates and details connected therewith, admission of her testimony was not error.  People v. Zuccaro (App. 1 Dist. 1941) 47 Cal.App.2d 414, 118 P.2d 40.

In prosecution for violating this section, relating to crimes against children wherein child prosecutrix testified in detail with respect to conduct of defendant on occasion when another five year old child as well as prosecutrix was asserted victim of defendant’s misconduct, and such other child when called as witness was unable to qualify as such, refusal of trial court to instruct that jury should not draw any inference from fact that court ruled that such other child was not competent to testify and that jury should not surmise as to nature of such child’s testimony if she had been allowed to testify was error.  People v. Adams (1939) 14 Cal.2d 154, 93 P.2d 146.

That, on preliminary examination, six year old child misstated her age, did not know her birthday, did not know what happens to girls who do not tell the truth, and did not know where she lived did not show that child lacked proper qualifications as a witness in prosecution of accused for committing a lewd act upon her.  People v. Carpenter (App. 1935) 3 Cal.App.2d 746, 40 P.2d 524.

Under C.C.P. § 1880, (repealed;  see, now, Evid.C. §§ 701, 702, in part) declaring children under 10 years of age incompetent witnesses when they are incapable of receiving or relating just impressions of fact, the competency of a child on whom a lewd act was alleged to have been committed, contrary to this section, making it a felony to commit such an act on a child under 14 years of age, was a matter within the discretion of the trial court.  People v. Stouter (1904) 142 Cal. 146, 75 P. 780.

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77. Witness Coaching in PC 288 Cases

In prosecution for violation of this section, whether five-year-old victim or her seven-year-old brother was testifying to facts of his or her own knowledge or as result of coaching by mother was to be determined by jury as trier of facts;  and jury’s determination that testimony of prosecutrix was worthy of belief found substantial support in record.  People v. Pike (App. 2 Dist. 1960) 7 Cal.Rptr. 188, 183 Cal.App.2d 729.Criminal LawKey Number742(1)InfantsKey Number1746

In prosecution under this section, trial judge abused discretion in stating to seven year old girl, who was attempting to indicate the part of her body on which defendant had allegedly placed his hand, “Well, farther down, will you” which direction the girl immediately obeyed. People v. Whitehead (App. 1957) 148 Cal.App.2d 701, 307 P.2d 442.

In prosecution for lewd or lascivious acts against a child, testimony of complaining witness, while not so inherently improbable as to be worthy of no belief, was open to attack on ground that it showed that she had been suggestively questioned and requestioned as to the crime by police.  People v. Evans (1952) 39 Cal.2d 242, 246 P.2d 636.

Minor children’s testimony against their stepfather in his prosecution for taking indecent liberties with them should not be rejected on ground that they were coached by deputy sheriff, where he told them to recite exactly what happened and to tell the truth and defendant did not contradict anything said during deputy’s interrogation of children in defendant’s presence, nor deny charges.  People v. Kasunic (1950) 95 Cal.App.2d 676, 213 P.2d 778.

In prosecution for committing lewd and lascivious acts upon a female child seven years old, question of whether prosecuting witness was testifying as to facts of her own knowledge or on coaching by her mother was to be determined by trier of fact and where there was substantial evidence to sustain finding that prosecuting witness was telling the truth, such determination was binding upon appellate court.  People v. Aleshire (App. 1 Dist. 1949) 90 Cal.App.2d 506, 203 P.2d 569.

In prosecution for committing lewd and lascivious acts upon a female child nine years old, evidence failed to establish a conspiracy of assistant district attorney, juvenile court officer and prosecutrix’ mother “to coach” the child and have her testify falsely to things that had not occurred, so as to render child’s testimony unworthy of belief.  People v. Carlson (App. 1946) 73 Cal.App.2d 933, 167 P.2d 812.

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78. Rape Experts in PC 288 Cases

In prosecution for sexual offenses involving five-year-old child, testimony of sexual trauma expert regarding victim’s truthfulness was inadmissible.  People v. Willoughby (App. 5 Dist. 1985) 210 Cal.Rptr. 880, 164 Cal.App.3d 1054.

Admission of testimony of “rape expert” that victim’s conduct was reasonable was reversible error as case was a close one and victim’s credibility was pitted against that of the defendant, when case had been previously tried without the expert’s testimony there was a mistrial, expert testified over objection that evidence created substantial danger of undue prejudice and trial judge questioned whether an expert was necessary.  People v. Clark (App. 4 Dist. 1980) 167 Cal.Rptr. 51, 109 Cal.App.3d 88.

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79. Victim Testimony

 

Evidence at preliminary hearing did not support information on charges of committing a lewd and lascivious act on a person who was fifteen years old, where complainant could not recall, even after repeated questioning, whether alleged conduct occurred prior to her sixteenth birthday.  People v. Graff (App. 2 Dist. 2009) 87 Cal.Rptr.3d 827, 170 Cal.App.4th 345, as modified.

Contradictions in child victim’s testimony about molestation during month in question did not render testimony impossible to believe or obviously false but, rather, merely presented jury with a credibility determination at trial for committing a lewd act on a child of 14 or 15 years of age, even though victim, after she testified that defendant molested her more than two times, testified on recross examination that she had said “about once” and that she did not “really remember much” about month; a reasonable juror could have understood victim’s statements on recross examination as specific responses to assertions made by defense counsel.  People v. Mejia (App. 2 Dist. 2007) 65 Cal.Rptr.3d 776, 155 Cal.App.4th 86.

Defendant in Sexually Violent Predators Act (SVPA) proceeding did not make sufficient offer of proof to allow him to call victim of lewd act committed when victim was 12 to testify as to nature of defendant’s acts; defendant stated that victim’s testimony would be same as his statements referenced in police and probation reports, and defendant conceded that he was unaware of any other statements victim made.  People v. Carlin (App. 6 Dist. 2007) 58 Cal.Rptr.3d 495, 150 Cal.App.4th 322.

Victim of commission of a lewd act upon a child under the age of 14 years was unavailable, for purpose of allowing introduction of his preliminary hearing testimony at trial, due to mental illness or infirmity attributable to crime-induced mental trauma, where treating physician testified that victim suffered from posttraumatic stress syndrome and opined that testifying at trial would be damaging to his emotional state, and likely cause the return of his nightmares and a setback in his recovery from abduction and forced sodomy.  People v. Winslow (App. 2 Dist. 2004) 19 Cal.Rptr.3d 872, 123 Cal.App.4th 464, rehearing denied, review denied.

Trial court’s finding that victim, in prosecution for committing a lewd act upon a child under the age of 14 years, was unavailable due to mental illness or infirmity attributable to crime-induced mental trauma, for purpose of allowing introduction of his preliminary hearing testimony at trial, was mixed question of fact and law implicating constitutional right of confrontation which was subject to de novo standard of appellate review.  People v. Winslow (App. 2 Dist. 2004) 19 Cal.Rptr.3d 872, 123 Cal.App.4th 464, rehearing denied, review denied.

Child’s testimony regarding being molested need not be corroborated in order to support conviction for lewd and lascivious act on child under 14 years of age.  People v. Rios (App. 4 Dist. 1992) 12 Cal.Rptr.2d 15, 9 Cal.App.4th 692, review denied.

Defendant’s conviction for lewd and lascivious acts with children under the age of 14 was supported by testimony of young boys that defendant gave them money for taking off their clothes, playing games, and being orally copulated by him.  People v. O’Connor (App. 2 Dist. 1992) 10 Cal.Rptr.2d 530, 8 Cal.App.4th 941, review denied.

Defendant charged with several counts of forcible lewd conduct on child under age 14 waived objection that inconsistencies in child witness’ testimony indicated that evidence adduced at trial showed offenses completely different from offenses at preliminary hearing, even though defendant objected to People’s amending information to expand alleged time ranges in which incidents might have occurred, where defendant, in objecting, did not contend offenses were not same ones shown at preliminary hearing.  People v. Gil (App. 2 Dist. 1992) 4 Cal.Rptr.2d 697, 3 Cal.App.4th 653.

Due process does not require that testimony of a child witness be corroborated.  People v. Harlan (App. 4 Dist. 1990) 271 Cal.Rptr. 653, 222 Cal.App.3d 439, review denied.

Instruction dealing with assessment of credibility of child witnesses does not violate constitutional right to confront witnesses.  People v. Harlan (App. 4 Dist. 1990) 271 Cal.Rptr. 653, 222 Cal.App.3d 439, review denied.

Instruction on testimony of a child ten years or younger does not impermissibly usurp the role of the jury by withdrawing from the jury the right to make findings as to credibility of witnesses.  People v. Harlan (App. 4 Dist. 1990) 271 Cal.Rptr. 653, 222 Cal.App.3d 439, review denied.

Instruction that, in evaluating the testimony of a child ten years of age or younger, jury should consider all the facts surrounding the child’s testimony, including his age and any evidence of his cognitive development, but that age and cognitive development of a child do not mean that the child is any more or less credible as a witness than an adult and that a child’s testimony should not be distrusted solely because he or she is a child does not preclude the jury from considering a child’s age and cognitive ability in deciding the child’s credibility and does not unconstitutionally inflate the testimony of children or invade the province of the jury to make credibility determinations.  People v. Harlan (App. 4 Dist. 1990) 271 Cal.Rptr. 653, 222 Cal.App.3d 439, review denied.

Uncorroborated testimony of victim less than five years old may be considered substantial evidence to support a conviction of committing a lewd act with a child under 14.  People v. Harlan (App. 4 Dist. 1990) 271 Cal.Rptr. 653, 222 Cal.App.3d 439, review denied.

In child molestation prosecution in which victim testified as to frequent molestations by defendant at five separate locations, and consisting exclusively of oral copulation, victim’s inability to specify the exact time, place or circumstances of the assaults did not deny defendant due process.  People v. Jones (1990) 270 Cal.Rptr. 611, 51 Cal.3d 34, 51 Cal.3d 294, 792 P.2d 643, as modified, on remand 273 Cal.Rptr. 292.

Despite constitutional right to unanimous jury on specific charges, there is no constitutional impediment to allowing jury, which has been given unanimity instruction, to find defendant in child molestation case guilty of more than one indistinguishable act, based on generic testimony of victim, providing the three minimum prerequisites for victim testimony are satisfied.  People v. Jones (1990) 270 Cal.Rptr. 611, 51 Cal.3d 34, 51 Cal.3d 294, 792 P.2d 643, as modified, on remand 273 Cal.Rptr. 292.

Child molestation convictions were supported by substantial evidence in light of victim’s testimony as to molestations once or twice each month at five separate locations, and consisting exclusively of oral copulation, occurring within periods specified in the respective counts of the information as well as within the limitation period, notwithstanding victim’s inability to specify the exact time, place or circumstances of the assaults.  People v. Jones (1990) 270 Cal.Rptr. 611, 51 Cal.3d 34, 51 Cal.3d 294, 792 P.2d 643, as modified, on remand 273 Cal.Rptr. 292.

In prosecution for committing a lewd act on or with the body of a child, testimony of six year old girl that defendant kissed her body was not inherently improbable and unbelievable, where girl’s testimony was clear, unequivocal and free of contradictions or inconsistencies, and she appeared to be an intelligent child.  People v. Wall (App. 1948) 88 Cal.App.2d 551, 199 P.2d 32.

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80. Admissions by the Defendant

There were no significant inconsistencies between juvenile’s statement and mother’s recounting of victim’s statements that rendered juvenile’s confession inadmissible in delinquency proceeding regarding the crime of lewd act upon a child; juvenile confessed to kissing the victim’s vagina, “just the once,” while victim said that juvenile had pulled her pants down and touched her vagina, “suck[ing] her part,” and juvenile said he had asked the victim to kiss his penis and his penis might have touched her chin or her cheek area, while victim said “she did not want to taste it because it tasted nasty.”  In re J.A. (App. 2 Dist. 2011) 130 Cal.Rptr.3d 512, 198 Cal.App.4th 914.

Where record, in prosecution for rape, forcing child under age of 14 years to orally copulate, and lewd and lascivious acts on child under age of 14 years, showed that defendant initially stated to investigating officer that he was never with victim or at location of scene of offense, that later in interview he changed his story and admitted that he had been with girls but no force was used and all acts were consensual, and related in detail what took place that night, and where, at trial, defendant denied making such admissions to investigating officer, trial court properly instructed jury that it could consider any pretrial statements of defendant that were false or deliberately misleading as tending to show proof of consciousness of guilt concerning charges.  People v. Gutierrez (App. 2 Dist. 1978) 145 Cal.Rptr. 823, 80 Cal.App.3d 829.

Alleged statement by defendant, in response to question by victim’s mother, that he still loved the family and was trying to help the family did not amount to admission by implication of the sexual misconduct charges with respect to the two daughters in family and did not imply any admission of guilt even when considered along with other evidence, so that trial court did not err in refusing to give instruction regarding admissions.  People v. Creighton (App. 2 Dist. 1976) 129 Cal.Rptr. 249, 57 Cal.App.3d 314.

Permitting, after defendant had denied sexually touching either eight-year-old daughter or fourteen-year-old stepchild, defendant’s former wife to testify in rebuttal that defendant had called her on the telephone and related that the stepchild had lied at preliminary hearing but that defendant did not relate anything about daughter’s testimony was not abuse of discretion even though wife had testified in chief for the prosecution and did not give rise to improper inference that by challenging only testimony of stepchild defendant impliedly admitted truth of daughter’s testimony.  People v. Messer (App. 4 Dist. 1969) 80 Cal.Rptr. 811, 276 Cal.App.2d 300.

Evidence relating to statements of defendant were properly presented on rebuttal rather than as a part of people’s case in chief, where the statements, which claimed that defendant did not return to apartment where young girls were allegedly molested, were offered in rebuttal after defendant had testified that he did return to the apartment and did see the girls again that night.  People v. Bronson (App. 2 Dist. 1968) 70 Cal.Rptr. 162, 263 Cal.App.2d 831, certiorari denied 89 S.Ct. 1316, 394 U.S. 964, 22 L.Ed.2d 566.

Evidence that defendant had stated that he sought sexual relationship with boys because of sexual difficulties with his wife was admissible in rebuttal in morals offense prosecution wherein defendant testified that he had no motive or reason to commit offenses charged.  People v. Newville (App. 1 Dist. 1963) 33 Cal.Rptr. 816, 220 Cal.App.2d 267.

Where, from testimony, there could be no question but that defendant’s statement, given following his arrest, was made because he would rather plead guilty to anything than go to trial on a not-guilty plea to a charge of violation of this section, and because he believed he was being charged with misdemeanor violation of Welf. & Inst.C. § 702 (repealed;  see, now, Pen. C. § 272), rather than with violation of this section, it was prejudicial error to admit his statement in prosecution for the latter offense and such error was compounded by erroneous instruction.  People v. Moranda (App. 3 Dist. 1960) 5 Cal.Rptr. 522, 181 Cal.App.2d 600.

In prosecution for lewd and lascivious conduct with 12 year old girl, instruction that all oral admissions of defendants should be viewed with caution should have been given, but failure to do so was not prejudicial error in view of improbability that a different result would have been reached had instruction been given.  People v. Clark (App. 1953) 117 Cal.App.2d 134, 255 P.2d 79.

In prosecution for commission of lewd and lascivious acts on two 10 year old girls, admission of testimony of police officer that defendant had stated to him that one of the girls had stated that if defendant did not give her some money she would tell what defendant did to her sister, if error, was not prejudicial on ground that it tended to show that defendant may have mistreated the sister of one of the prosecuting witnesses, where the sister herself testified that defendant had never touched her.  People v. Hicks (App. 1946) 76 Cal.App.2d 142, 172 P.2d 565.

Where defendant’s daughters testified that he committed lewd acts, instruction that defendant’s admission of acts of undue familiarity with daughters, if believed, was sufficient corroboration of testimony of daughters, who allegedly were accomplices, was proper.  People v. Briley (App. 2 Dist. 1935) 9 Cal.App.2d 84, 48 P.2d 734.

Finding that police officer’s erroneous testimony, which was basis for California state court’s search warrant, was not made knowingly or with reckless disregard for the truth, was not clearly erroneous, such that evidence found in defendant’s home would not be suppressed in his prosecution for possession of child pornography; officer testified that defendant had been previously convicted of child molestation of a 14-year-old girl, whereas defendant had been convicted of forcible oral copulation with a 19-year-old woman under the same statute.  U.S. v. Flake, C.A.9 (Cal.)2003, 69 Fed.Appx. 856, 2003 WL 21500042, Unreported, certiorari denied 124 S.Ct. 502, 540 U.S. 995, 157 L.Ed.2d 396.

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81. Repetitive Witness Testimony and Evidence in PC 288 Cases

In prosecution for violation of this section, there was nothing prejudicial in prosecution’s endeavor to elicit from children involved accurate statements of what had occurred, notwithstanding defendant’s contention that jury had been prejudiced against him through repetition of sordid and heinous acts attributed to him.  People v. Stice (App. 1958) 165 Cal.App.2d 287, 331 P.2d 468.

In prosecution of a defendant who allegedly showed a 12 year old boy lewd pictures and then allegedly placed his hands on boy’s privates, permitting prosecution over defendant’s objection to ask complaining witness three times just how defendant did alleged act of placing his hand on boy’s privates was not misconduct where repetition was caused by youth of boy and his embarrassment and prosecution was attempting to elicit accurate statement of what occurred.  People v. Boford (App. 1953) 117 Cal.App.2d 576, 256 P.2d 334.

In a prosecution for lascivious acts upon the body of a girl under the age of 14 years, contrary to this section where defendant introduced all the evidence possible to rebut the charge, the conduct of the district attorney in persistently asking questions which suggested he had information that defendant had been guilty of similar acts and had had sexual intercourse with other girls in the institution of which he was in charge necessarily impressed the jury with the idea that the district attorney had such information and was prejudicial to defendant, notwithstanding the court sustained objections to the questions and instructed the jury to disregard them.  People v. Anthony (1921) 185 Cal. 152, 196 P. 47.

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82. When Statements made by victim after the alleged incident can be let in as evidence against the defendant

Five-year-old sexual abuse victim’s complaint was admissible under “fresh” or “recent” complaint doctrine, though complaint was made approximately seven months after incident, where complaint was made shortly after victim attended class on molestation and learned of importance of reporting such incidents.  People v. Clark (App. 5 Dist. 1987) 238 Cal.Rptr. 230, 193 Cal.App.3d 178, review denied.

Evidence consisting of extrajudicial statement made to victim’s mother by a five-year-old girl, to the effect that children were down at defendant’s home and that he was “playing nasties with them,” was admissible within the “excited utterances” exception to the hearsay rule even though the five-year-old girl did not appear at trial and thus had not been found competent to testify, but such testimony was not admissible under the “complaint” doctrine, in view of its tendency to go beyond issue of complaint and be more addressed to supporting truth of the matter alleged.  People v. Butler (App. 1 Dist. 1967) 57 Cal.Rptr. 798, 249 Cal.App.2d 799.

Denying defendant right to cross-examine mother of child prosecutrix by inquiring if child had complained of advances made to her by various men was reversible error where there was a total lack of corroboration, child made a belated complaint to her mother of defendant’s alleged sexual offenses and there was a marked inconsistency in child’s testimony.  People v. Scholl (App. 2 Dist. 1964) 37 Cal.Rptr. 475, 225 Cal.App.2d 558.

Although details of sex offense cannot be recounted by victim, state can show that complaint made by victim related to the matter being inquired into, and victim’s statement of nature of offense and identity of asserted offender, without details, is admissible;  contrary implications or holdings of other cases overruled.  People v. Burton (1961) 11 Cal.Rptr. 65, 55 Cal.2d 328, 359 P.2d 433.

In prosecution for committing lewd and lascivious acts upon a child, testimony of the complaining witness need not be corroborated but the fact that the child did make a complaint to her mother of the treatment she received constitutes corroboration of her testimony concerning the defendant’s wrongful acts.  People v. Garrow (App. 2 Dist. 1959) 1 Cal.Rptr. 271, 176 Cal.App.2d 269.

In prosecution for lewd and lascivious offense against a child under 14 years of age and for sex perversion, testimony of a third party that the 6 year old child pointed the defendant out to him shortly after she complained of defendant’s acts and as she saw him walking near her house carrying an ice cream cone as he had done at the time of the offenses was admissible to corroborate her story and to rebut the suggestion that her identification at trial was result of a recent contrivance and was not inherently unreliable.  People v. Slobodion (1948) 31 Cal.2d 555, 191 P.2d 1, certiorari denied 69 S.Ct. 24, 335 U.S. 835, 93 L.Ed. 387.

Fact that prosecutrix made a complaint in prosecution for committing a lewd act is admissible as “original evidence”, but testimony concerning the details as then given, or the name of the person accused, is “hearsay”.  People v. Huston (1943) 21 Cal.2d 690, 134 P.2d 758.

In prosecution for violation of this section, punishing crimes against children and § 288a, punishing sex perversions, admission of testimony of mother of prosecuting witness, that about ten months after one offense charged and almost a month after other offense charged, prosecuting witness complained to witness about defendant, was error, as against contention that testimony was admissible under rule that, where such offense has been committed against one under legal age, complaint made while occurrence was recent may be proved by the victim or by person to whom the complaint was made, since complaint was not as to a “recent occurrence”.  People v. Hubbell (App. 2 Dist. 1942) 54 Cal.App.2d 49, 128 P.2d 579.

In prosecution for violating this section, relating to crimes against children, rule that proof of complaint of the act while it is recent may be shown by prosecutrix and also by person to whom complaint was made does not extend to details of the act complained of.  People v. Adams (1939) 14 Cal.2d 154, 93 P.2d 146.

In prosecution for committing lewd acts upon two four year old girls, testimony of girls’ grandmother as to details of alleged acts as narrated to grandmother by girls should have been excluded, notwithstanding objection to testimony was informally interposed.  People v. Watrous (App. 1935) 7 Cal.App.2d 7, 45 P.2d 380.

In prosecution for committing lewd acts upon two four year old girls, refusal to admit proceedings had upon preliminary examination, and of inquisition of grand jury, was error, where proceedings disclosed that children did not comprehend nature of proceedings and did not indicate sufficient understanding to narrate circumstances surrounding alleged offense, and that testimony taken before grand jury was result of leading and suggestive questions, while testimony at trial was direct and connected, indicating at least some preparation, and language and expressions used by each of children was almost identical as that employed by other.  People v. Watrous (App. 1935) 7 Cal.App.2d 7, 45 P.2d 380.

In prosecution for committing lewd acts on female infant in violation of this section, where child was incompetent as a witness, admission of details of complaint made by prosecutrix to her mother was error, and fact that mother was cross-examined upon such subject did not justify its admission.  People v. Ewing (App. 1 Dist. 1925) 71 Cal.App. 138, 234 P. 917.

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83. Immediate outcry by the victim can be used as evidence against the defendant

Refusal to instruct, in prosecution for violation of this section, that failure of alleged victims to make an outcry immediately after alleged commission of the alleged act was a fact to be considered by jury in connection with the credibility of the victims was not error where, inter alia, there was evidence that girls ran from bedroom when defendant allegedly committed the acts, and that they told their mother regarding the acts when she returned home.  People v. Bronson (App. 2 Dist. 1968) 70 Cal.Rptr. 162, 263 Cal.App.2d 831, certiorari denied 89 S.Ct. 1316, 394 U.S. 964, 22 L.Ed.2d 566.

In a prosecution for lewd and lascivious acts committed on a girl of 10, in violation of this section, failure to make outcry immediately after the commission of the act goes only to the question of the credibility of prosecutrix.  People v. Healey (App. 1 Dist. 1921) 52 Cal.App. 563, 199 P. 551.

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84. Delayed Report of PC 288 Offense

Testimony regarding child sexual abuse accommodation syndrome (CSAAS) is admissible to rehabilitate a molestation victim’s credibility when the defendant suggests that the child’s conduct after the incident, such as a delay in reporting, is inconsistent with his or her testimony claiming molestation.  People v. Perez (App. 6 Dist. 2010) 105 Cal.Rptr.3d 749, 182 Cal.App.4th 231, review denied.

Refusal to instruct, in prosecution for committing lewd and lascivious acts upon body of child under age of 14 years, that failure of eleven-year-old prosecutrix to make prompt complaint of offense was circumstance that jury could consider in determining her credibility was not error.  People v. Wrigley (1968) 70 Cal.Rptr. 116, 69 Cal.2d 149, 443 P.2d 580.

Delay for about four weeks after the first incident and for nine days after the second incident before eight-year-old child complained to mother of alleged sexual offenses committed by defendant, who according to child had threatened to kill child and her mother was not unreasonable, and testimony of complaint was not too remote as a matter of law.  People v. Scholl (App. 2 Dist. 1964) 37 Cal.Rptr. 475, 225 Cal.App.2d 558.

Although courts look with disfavor on a complaint made long after event on which a charge of committing lewd and lascivious acts upon a child is based, an interval of a week or so may not serve to destroy worth of child’s testimony.  People v. Staggs (App. 2 Dist. 1960) 4 Cal.Rptr. 587, 180 Cal.App.2d 578.

Even if doctor’s testimony in prosecution for lewd act upon child could be interpreted as meaning that prosecutrix had made complaint to him relating to assault, such testimony was not excludable as relating to complaint too remote in time in view of evidence that defendant’s act was part of continuous course of conduct and that defendant had threatened her with bodily harm if she told anyone.  People v. Boone (App. 1 Dist. 1954) 126 Cal.App.2d 746, 273 P.2d 350.

In prosecution for commission of lewd and lascivious acts on body of seven year old child, refusal of requested instruction that while it was admissible for prosecution to introduce evidence to establish that prosecuting witness made complaint of alleged offense, delay in making such complaint was a circumstance which should be considered by jury on question of whether any offense had been committed was not prejudicial error, since instruction was too limited to be applicable to facts in case, particularly in view of other instructions given on subject of credibility of witnesses and cautionary instruction as to sex offenses involving minors.  People v. La Mantain (App. 1 Dist. 1949) 89 Cal.App.2d 699, 201 P.2d 598.

In prosecution for sodomy and for lewd and lascivious conduct, failure of prosecuting witnesses to report commission of acts to their parents for some time were matters for jury’s consideration and did not render the prosecuting witnesses’ testimony unworthy of belief.  People v. Westek (1948) 31 Cal.2d 469, 190 P.2d 9.

In prosecution for committing lewd acts upon two four year old girls in the afternoon, complaint made to girls’ grandmother following morning was not too remote so as to make testimony thereof inadmissible, notwithstanding complaint was not made to girls’ mother with whom girls spent time from 4 o’clock in afternoon of day offense was charged to have occurred until 7 o’clock following morning, when they were taken to home of grandmother.  People v. Watrous (App. 1935) 7 Cal.App.2d 7, 45 P.2d 380.

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85. Victim’s Failure to Report PC 288 Offense

Fact that victim, who was below age of consent, made no complaint as to commission of lewd and lascivious acts upon her was immaterial, and instruction that jury could consider such facts was properly refused.  People v. Wrigley (1968) 70 Cal.Rptr. 116, 69 Cal.2d 149, 443 P.2d 580.

In prosecution for lewd and lascivious acts committed with a child, child’s story was not rendered unworthy of belief because child failed to make complaint to her mother until she was questioned by her mother after child’s sister had told the mother of a similar act committed on the sister.  People v. Boyd (1950) 95 Cal.App.2d 831, 213 P.2d 724.

Failure of boys to report to their parents the alleged commission of lewd and lascivious acts by defendant until police officers questioned the boys, their manner of testifying in prosecution for commission of lewd and lascivious acts on the body of a child under 14, and their vagueness concerning dates on which specific acts charged were allegedly committed, did not brand their testimony unworthy of belief and obviously false as a matter of law.  People v. Jones (App. 1 Dist. 1948) 89 Cal.App.2d 151, 200 P.2d 65.

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86. Can evidence of other previous sex offenses be used in a PC 288 case?

Trial court acted within its discretion in refusing to sever trial of defendant’s offenses of forcible rape and lewd act on a child under age 14, even though the two offenses were committed in different counties against different victims, where defendant made no effort to show prejudice, and defendant merely argued that there was “no nexus between these two offenses” and “no serial-type activity here.”  People v. Huy Ngoc Nguyen (App. 4 Dist. 2010) 109 Cal.Rptr.3d 715, 184 Cal.App.4th 1096, rehearing denied, review denied.

Evidence of defendant’s sexual assaults of two adult women had substantial probative value in showing propensity to commit charged lewd and lascivious act on seven-year-old girl, despite the differences in the ages of the females; in each instance, defendant took advantage of his female victims when they were vulnerable, as all three were sleeping when defendant initiated his assaults, and defendant seized on each of those opportunities when it was particularly risky to do so.  People v. Escudero (App. 3 Dist. 2010) 107 Cal.Rptr.3d 758, 183 Cal.App.4th 302, review denied.

Defendant’s sexual molestations of three teenage girls were sufficiently similar to charged offense of committing a lewd and lascivious act on seven-year-old girl for admission as evidence of intent and absence of mistake; defendant repeatedly committed sex offenses against underage girls in an aggressive, opportunistic, and risky pursuit of his sexual gratification, he repeatedly looked at and commented upon teenage girls’ developing bodies in a sexual manner, and his actions showed that he did not discriminate based on age of his victims, even those who were underage or not fully developed physically.  People v. Escudero (App. 3 Dist. 2010) 107 Cal.Rptr.3d 758, 183 Cal.App.4th 302, review denied.

Though damaging to defendant, highly probative evidence relating to defendant’s prior sexual assaults of two adult women was not unduly prejudicial as admitted in prosecution for committing a lewd and lascivious act on seven-year-old girl.  People v. Escudero (App. 3 Dist. 2010) 107 Cal.Rptr.3d 758, 183 Cal.App.4th 302, review denied.

Conviction for lewd conduct on a child under the age of 14 could be obtained at trial by the same evidence used to show defendant raped and sodomized the child.  People v. Richardson (2008) 77 Cal.Rptr.3d 163, 43 Cal.4th 959, 183 P.3d 1146, rehearing denied, as modified, certiorari denied 129 S.Ct. 1316, 555 U.S. 1177, 173 L.Ed.2d 596.

Requirement of statutory exception to six-year statute of limitations for certain sexual offenses against children, that the defendant have committed at least one lewd or lascivious act against the same child within the statute of limitations, is satisfied if the available evidence demonstrates by a preponderance that defendant did in fact commit a violation of the lewd and lascivious acts statute against the same victim within the six-year period.  People v. Smith (App. 6 Dist. 2002) 120 Cal.Rptr.2d 185, 98 Cal.App.4th 1182, review denied, denial of habeas corpus affirmed 220 Fed.Appx. 563, 2007 WL 387589, certiorari denied 128 S.Ct. 319, 552 U.S. 930, 169 L.Ed.2d 225.

Evidence that defendant had digitally penetrated rectum of a five-year-old boy five years before the alleged digital penetration of another five-year-old boy giving rise to present molestation charge was admissible; prior offense was not remote in time, offenses were virtually identical in all material respects, and probative value outweighed potential prejudicial effect.  People v. Regalado (App. 4 Dist. 2000) 93 Cal.Rptr.2d 83, 78 Cal.App.4th 1056, as modified, review denied.

Admission of evidence of defendant’s commission of a prior sexual offense did not deprive him of due process in prosecution for committing a lewd or lascivious act upon a child under 14 years of age.  People v. Callahan (App. 5 Dist. 1999) 87 Cal.Rptr.2d 838, 74 Cal.App.4th 356, review denied.

Probative value of evidence of defendant’s prior commission of lewd act upon 12-year-old girl was not substantially outweighed by concerns of undue prejudice or consumption of time in prosecution for committing a lewd or lascivious act upon his daughter when she was under 14 years of age; prior victim’s testimony was brief and to the point, and circumstances of prior incident were no more inflammatory than those of charged incident.  People v. Callahan (App. 5 Dist. 1999) 87 Cal.Rptr.2d 838, 74 Cal.App.4th 356, review denied.

Defendant in prosecution for committing lewd or lascivious act upon a child under 14 years of age could not complain on appeal that he was unduly prejudiced by admission of evidence of a prior lewd act upon another victim under 14, on basis that jury was not informed that he had been criminally convicted for that offense and was therefore inclined to punish him for it, where defendant had requested that evidence of the conviction be excluded.  People v. Callahan (App. 5 Dist. 1999) 87 Cal.Rptr.2d 838, 74 Cal.App.4th 356, review denied.

Probative value of evidence concerning prior lewd act involving different child was not outweighed by potential for confusing jurors in prosecution for committing lewd or lascivious act upon a child under age of 14 years, where jury was instructed that charged crime had to be proven beyond reasonable doubt, that prior lewd act could not be considered in any way unless prosecution proved it by a preponderance of evidence, and that prior act could be considered to support credibility of present victim if evidence showed defendant’s propensity to engage in certain types of sexual activity.  People v. Callahan (App. 5 Dist. 1999) 87 Cal.Rptr.2d 838, 74 Cal.App.4th 356, review denied.

Defendant was entitled, in prosecution for committing lewd and lascivious act upon his minor daughter in which state introduced evidence of a prior lewd act upon a different minor, to ask niece who had spent considerable time with him as a child whether he had ever touched her in an inappropriate manner.  People v. Callahan (App. 5 Dist. 1999) 87 Cal.Rptr.2d 838, 74 Cal.App.4th 356, review denied.

Evidence of uncharged sexual misconduct by defendant against victim was admissible in child sexual abuse prosecution, though statute making use of such evidence an exception to general prohibition against using character evidence to show criminal propensity was enacted after alleged dates of charged offenses, where statute became effective prior to trial.  People v. Yovanov (App. 4 Dist. 1999) 81 Cal.Rptr.2d 586, 69 Cal.App.4th 392, review denied.

Witness’ testimony in prosecution for lewd and lascivious acts upon child, making several references to certain acts defendant simultaneously committed against her and two other girls, did not warrant mistrial, despite defendant’s claim that he was prejudiced by introduction of “whole series of prior acts”; additional testimony was no more damaging or prejudicial than witness’ permissible testimony about acts defendant committed against her, and there was overwhelming evidence of defendant’s guilt apart from the improper testimony.  People v. Rose (App. 2 Dist. 1996) 53 Cal.Rptr.2d 559, 46 Cal.App.4th 257, rehearing denied, review denied.

Other sexual acts committed by defendant during time period in which indictment alleged that lewd and lascivious acts with child under 14 years of age occurred were admissible as charge involved “resident child molester.”  People v. Rios (App. 4 Dist. 1992) 12 Cal.Rptr.2d 15, 9 Cal.App.4th 692, review denied.

Defendant charged with committing lewd acts on minors, and who had three prior convictions for sex offenses, was entitled to admit truth of prior convictions rather than have that issue decided by jury.  People v. Webb (App. 4 Dist. 1992) 8 Cal.Rptr.2d 904, 7 Cal.App.4th 575, rehearing denied and modified, review denied.

Where, in prosecution of father for committing lewd and lascivious acts with his daughter and stepdaughter, father’s testimony amounted only to specific denial of accusations of daughters rather than blanket denial of any prior misconduct with another daughter, evidence of such prior misconduct was inadmissible to impeach that portion of defendant’s version of the events developed on direct examination wherein he denied that he ever molested any of his children.  People v. Thomas (1978) 143 Cal.Rptr. 215, 20 Cal.3d 457, 573 P.2d 433.

Nothing in California judicial precedent justifies general admission in prosecution for sex offenses of evidence of all prior offenses with persons other than prosecuting witness if sole asserted purpose for admission of such evidence is to corroborate prosecuting witness;  rather, in such situation remoteness and similarity restrictions have particular application (disapproving language in People v. Covert, 249 Cal.App.2d 81, 57 Cal.Rptr. 220, and other cases).  People v. Thomas (1978) 143 Cal.Rptr. 215, 20 Cal.3d 457, 573 P.2d 433.

In prosecution for lewd and lascivious conduct, wherein defendant denied on direct examination that he had at any time done acts of lewdness with either of his stepdaughters, their mainly uncorroborated testimony describing various incidents of sexual misconduct by defendant committed upon them over a period of six years antedating trial was admissible to show conduct inconsistent with defendant’s testimony on direct examination.  People v. Crume (App. 3 Dist. 1976) 132 Cal.Rptr. 577, 61 Cal.App.3d 803.

In prosecution for committing lewd and lascivious acts upon a nine-year-old boy, wherein defendant on direct examination stated that he had never had sexual relations of any kind with victim or any other children, testimony offered in rebuttal by victim’s sister that defendant had committed a sexual offense upon her was properly admitted.  People v. Staggs (App. 2 Dist. 1960) 4 Cal.Rptr. 587, 180 Cal.App.2d 578.

In prosecution for statutory rape, lewd or lascivious acts with infant females, and sex perversion, testimony of defendant’s daughter that defendant repeatedly endeavored to have sexual intercourse with her and that she complained to infants’ parents of defendant’s conduct and such parents’ testimony as to daughter’s complaints and statements to them were inadmissible as tending to prove other offenses than those charged and tending to degrade defendant.  People v. Whalen (App. 2 Dist. 1945) 70 Cal.App.2d 142, 160 P.2d 560.

In prosecution for commission of lewd and lascivious acts on a female child, permitting prosecution to introduce, over objection, on cross-examination evidence that on a prior occasion defendant had entered a plea of guilty to contributing to delinquency of a minor predicated on charge that he had committed a lewd act with a female child other than either of the prosecuting witnesses, after defendant had testified that he had never been rude to children was prejudicial error.  People v. Rogers (App. 1938) 26 Cal.App.2d 371, 79 P.2d 404.

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87. Corroboration or support for Victim’s Complaint against the defendant

Testimony by cousin of victim of sexual molestation that defendant also molested cousin sufficiently corroborated victim’s testimony, that charge for committing a lewd act upon a child could be filed against defendant after general six-year statute of limitations had run, where both victim and cousin were related to defendant, offenses occurred at victim’s house while defendant was living there, victim and cousin were of similar age when they were molested, and offenses involved similar behavior by defendant.  People v. Mabini (App. 2 Dist. 2001) 112 Cal.Rptr.2d 159, 92 Cal.App.4th 654.

In prosecution for committing lewd acts on a child, evidence of defendant’s sexual abuse of victim both before and after the period of charged misconduct was admissible to prove guilt; that evidence was not unduly inflammatory, since evidence relating to charged offenses was equally graphic and jury knew that defendant had already been convicted of many of the uncharged acts, and uncharged acts had great probative value given their close resemblance and temporal proximity to charged crimes.  People v. Yovanov (App. 4 Dist. 1999) 81 Cal.Rptr.2d 586, 69 Cal.App.4th 392, review denied.

Where proof necessarily depends on credibility of testimony of child witnesses about sexual acts performed in private, and where accusations of misconduct are flatly denied by accused, evidence of similar acts may be received on issue of credibility of the minor witnesses.  People v. Fritts (App. 2 Dist. 1977) 140 Cal.Rptr. 94, 72 Cal.App.3d 319.

That part of testimony by defendant’s daughter which directly corroborated his stepdaughter’s testimony as to sexual molestation of latter was admissible, and so was that part of daughter’s testimony describing molestation of herself and stepdaughter on same occasion.  People v. Fritts (App. 2 Dist. 1977) 140 Cal.Rptr. 94, 72 Cal.App.3d 319.

Purpose of rule that, in sex crime cases reduced to contest of credibility between victim and defendant as to commission of acts charged, trier of fact is not aided by evidence of other offenses limited to uncorroborated testimony of prosecuting witness is directed to evidence of uncharged offenses introduced to fortify credibility of prosecuting witness, and rule is not aimed at evidence relevant to credibility of defendant.  People v. Crume (App. 3 Dist. 1976) 132 Cal.Rptr. 577, 61 Cal.App.3d 803.

Where basic issue of case involving sex crime is the veracity of prosecuting witness and the defendant as to commission of acts charged, trier of fact is not aided by evidence of other offenses where that evidence is limited to uncorroborated testimony of the prosecuting witness.  People v. Stanley (1967) 63 Cal.Rptr. 825, 67 Cal.2d 812, 433 P.2d 913.

In prosecution for sexual offense, such as rape or commission of lewd acts with female under 14 years old, evidence of other like offenses or acts of improper familiarity and illicit intimacy or relations between defendant and prosecutrix before or after act charged in information is admissible to corroborate prosecutrix’ testimony, where they tend to show continuous illicit relationship, but is never admissible to prove independent substantive offenses.  People v. Smittcamp (App. 3 Dist. 1945) 70 Cal.App.2d 741, 161 P.2d 983.

In prosecution for statutory rape or commission of lewd acts with female under 14 years old, evidence of other acts of improper familiarity or illicit intimacy between defendant and prosecutrix was admissible to corroborate prosecutrix’ testimony as to commission of specific offense charged only after prosecution had selected and designated particular act allegedly committed on certain date, elected to rely thereon for conviction, and introduced evidence in support of specific charge, and jury must be correctly instructed as to limited purpose for which such evidence is received.  People v. Smittcamp (App. 3 Dist. 1945) 70 Cal.App.2d 741, 161 P.2d 983.

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88. Disposition of the Defendant can be used as evidence in PC 288 case

Defendant’s prior rape of disabled woman was not so dissimilar from current charges of multiple counts of lewd and lascivious conduct on child involving two young boys so as to render admission of evidence and resulting jury instruction a violation of due process; that defendant committed sexual offense on particularly vulnerable victim in past logically tended to prove he did so again with respect to current offenses.  People v. Cromp (App. 3 Dist. 2007) 62 Cal.Rptr.3d 848, 153 Cal.App.4th 476, rehearing denied, review denied.

Evidence of defendant’s prior attempts to touch or see young girls’ genital areas was admissible to show disposition in prosecution for committing lewd acts upon his minor stepdaughter, arising from allegations that he asked her to show him her genital area.  People v. Vichroy (App. 2 Dist. 1999) 90 Cal.Rptr.2d 105, 76 Cal.App.4th 92, modified on denial of rehearing, review denied.

Direct examination questions to defendant’s 11-year-old niece, who testified for defense in prosecution for committing lewd and lascivious act upon minor daughter, concerning whether defendant had the character of a child molester, were improper in response to prosecution’s presentation of evidence of a prior lewd act involving a different victim; niece was asked no questions to establish whether she even understood what child molestation was, and she gave no testimony that she ever observed defendant around any children other than herself.  People v. Callahan (App. 5 Dist. 1999) 87 Cal.Rptr.2d 838, 74 Cal.App.4th 356, review denied.

Improper exclusion of testimony by defendant’s niece as to whether he had ever touched her in an inappropriate manner, as proffered in prosecution for committing a lewd and lascivious act upon minor daughter after prosecution presented evidence of a prior lewd act upon another minor victim, did not warrant reversal of conviction; niece was permitted to testify that defendant took very good care of her and other children, and that testimony implied he had never touched her inappropriately.  People v. Callahan (App. 5 Dist. 1999) 87 Cal.Rptr.2d 838, 74 Cal.App.4th 356, review denied.

In cases in which uncharged prior sexual offenses are offered to show defendant’s lewd disposition toward prosecuting child witness, when evidence of charged offense consists of prosecuting witness’ testimony plus some corroborating evidence, there need not be separate corroborating evidence for each uncharged sexual offense committed against prosecuting witness before that witness’ testimony may be admitted as to such uncharged offense or offenses, so long as evidence of uncharged offenses is relevant, material, and noncumulative.  People v. Rios (App. 4 Dist. 1992) 12 Cal.Rptr.2d 15, 9 Cal.App.4th 692, review denied.

Even if evidence of other sexual offense had been admitted as rebuttal to defendant’s testimony rather than in prosecution’s case in chief, failure of trial court to give limiting instruction that such evidence should not be considered as proof of defendant’s predisposition to sexually molest children coupled with trial court’s affirmative instruction that evidence could be used to prove defendant’s intent in sexually molesting victim, would compel reversal.  People v. Willoughby (App. 5 Dist. 1985) 210 Cal.Rptr. 880, 164 Cal.App.3d 1054.

In prosecution for committing a lewd and lascivious act upon 11-year-old child, evidence of two incidents between defendant and child other than one charged in information was admissible for purpose of showing disposition of defendant.  People v. Bittick (App. 2 Dist. 1960) 2 Cal.Rptr. 378, 177 Cal.App.2d 479.

In prosecution for commission of lewd and lascivious acts on body of seven year old child, jury could not render a verdict of guilty unless it found that defendant committed specific offense charged despite evidence of other acts and evidence of such other acts could be considered only for determining whether defendant had a lewd and lascivious disposition toward the prosecuting witness.  People v. La Mantain (App. 1 Dist. 1949) 89 Cal.App.2d 699, 201 P.2d 598.

In prosecution for commission of lewd acts with females under 14 years old, instruction that evidence of other acts of sexual intercourse and improper familiarity of defendant with prosecutrices was admitted only to prove defendant’s adulterous disposition was prejudicial error, in absence of other testimony than that of prosecutrices themselves as to such other acts.  People v. Smittcamp (App. 3 Dist. 1945) 70 Cal.App.2d 741, 161 P.2d 983.

In crimes involving illicit sexual relations or acts, evidence of similar acts may ordinarily be shown, not as proof of independent substantive offenses, but as corroborative evidence to show a disposition on part of accused and as tending to support specific offense for which he is being tried, and ordinarily conduct of accused with person other than one connected with offense charged is inadmissible unless accused’s acts are parts of same transaction.  People v. McBride (App. 2 Dist. 1945) 69 Cal.App.2d 331, 159 P.2d 59.

In a prosecution under this section, for lewd and lascivious conduct with a child, proof of prior lascivious acts, even though tending to show the commission of the distinct crime of sodomy, was relevant to illustrate the defendant’s lascivious disposition.  People v. Love (App. 1916) 29 Cal.App. 521, 157 P. 9.

Trial court’s failure to give a specific acts unanimity instruction in prosecution in which defendant was charged with 10 counts of lewd and lascivious conduct with a child under 14 years of age required reversal, inasmuch as it could not be declared beyond a reasonable doubt that jury relied on the same specific acts in finding defendant guilty of one count; jury was presented with three distinctly different types of molestation that occurred in different locations of the residence and not necessarily on the same days.  People v. Smith (App. 3 Dist. 2005) 34 Cal.Rptr.3d 472, 132 Cal.App.4th 1537.

Evidence of defendant’s prior sexual offenses against two other girls was at least circumstantially relevant, in prosecution against defendant for lewd and lascivious acts upon a child under 14 years of age, to the issue of defendant’s disposition or propensity to commit current offenses, and thus jurors were properly instructed that, if they found defendant committed a prior sexual offense, they could, but were not required, to infer that he was likely to commit and did commit the crimes of which he was accused.  People v. Jeffries (App. 3 Dist. 2000) 98 Cal.Rptr.2d 903, 83 Cal.App.4th 15, review denied.

Former version of pattern jury instruction, which told jurors that, if they found defendant committed a prior sexual offense, they could, but were not required, to infer that he was likely to commit and did commit the crimes of which he was accused, did not allow jury to find defendant guilty on 16 counts of lewd and lascivious acts upon child under 14 years of age without proof beyond a reasonable doubt, when such instruction was given in conjunction with pattern instructions on circumstantial evidence and on requirement that prior sexual offenses be proved by preponderance of evidence.  People v. Jeffries (App. 3 Dist. 2000) 98 Cal.Rptr.2d 903, 83 Cal.App.4th 15, review denied.

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89. Evidence of Other Prior Sex Offenses Can be Let in if it shown that all the sex offenses follow a common design or plan

Evidence of defendant’s sexual abuse of child victim both before and after time period out of which charges arose would be admissible, even if it were subject to general prohibition against use of character evidence to show criminal propensity, since such evidence was probative of a common design or plan to molest victim.  People v. Yovanov (App. 4 Dist. 1999) 81 Cal.Rptr.2d 586, 69 Cal.App.4th 392, review denied.

Jury had sufficient evidence, including mother’s testimony that she left her daughter alone with defendant on an unspecified date and daughter’s testimony that defendant sexually molested her every time she was left alone with him, from which to infer a criminal act took place.  People v. Osuna (App. 4 Dist. 1984) 207 Cal.Rptr. 641, 161 Cal.App.3d 429.

In prosecution for molesting young girls, another girl’s testimony that she had observed defendant and his daughter perform act similar to those charged was of probative value and trial court did not abuse its discretion in holding that the probative value outweighed possible prejudicial effect of testimony and in admitting the testimony to show general scheme or design, inasmuch as evidence warranted inference that, if defendant committed such act, he committed the acts charged.  People v. Haslouer (App. 4 Dist. 1978) 145 Cal.Rptr. 234, 79 Cal.App.3d 818.

In prosecution of father for committing lewd and lascivious acts on body of his daughter and stepdaughter, evidence that defendant committed similar acts with another daughter during period between 10 and 18 years prior to offenses with which he was charged, adduced to show common design or plan, was inadmissible on ground of remoteness of such prior acts.  People v. Thomas (1978) 143 Cal.Rptr. 215, 20 Cal.3d 457, 573 P.2d 433.

In prosecution for lewd and lascivious acts with defendant’s stepdaughter and for unlawful sexual intercourse with her, testimony of defendant’s daughter about molestation by defendant at times and in places when stepdaughter was not present was admissible as tending to show continuing plan or design on part of defendant to use minor female members of his own household to satisfy his sexual gratifications and wants and also admissible as tending to buttress credibility of stepdaughter and another minor witness who had been charged by defendant with fabricating the evidence against him.  People v. Fritts (App. 2 Dist. 1977) 140 Cal.Rptr. 94, 72 Cal.App.3d 319.

General similarity between uncharged and charged sex offenses is insufficient for admissibility of evidence that defendant committed uncharged offense, offered on issue of identity, common scheme or plan, or modus operandi to suggest that defendant was therefore perpetrator of charged sex offense.  People v. Rodriguez (App. 2 Dist. 1977) 137 Cal.Rptr. 594, 68 Cal.App.3d 874.

Test of whether evidence of other offenses should be admitted in child molesting case was whether there was similarity of actions and details showing a discernible pattern, rather than uniqueness.  People v. Armstrong (App. 4 Dist. 1969) 79 Cal.Rptr. 668, 275 Cal.App.2d 30.

Trial court’s refusal to allow defendant to introduce evidence of details of alleged sexual conduct between complaining witness and another person did not violate defendant’s right to due process of law or the confrontation clause at trial for lewd or lascivious act on child age 14 or 15, as, although witness’s credibility was a central issue, examination on that particular topic would not have had a significant impact on defendant’s defense or on the jury’s impression of witness’s credibility.  People v. Bautista (App. 6 Dist. 2008) 77 Cal.Rptr.3d 824, 163 Cal.App.4th 762, review denied, habeas corpus denied 2012 WL 601606.

Details of complaining witness’s alleged sexual conduct with one boy did not relate to cross-examination on issue of whether witness ever told another person that she hated defendant, who was a pastor at their church, because he had “squashed” her relationship with the boy, and thus the details were inadmissible at defendant’s trial for lewd or lascivious act on child age 14 or 15, despite defendant’s contention that lack of details prevented him from cross-examining witness regarding the statement.  People v. Bautista (App. 6 Dist. 2008) 77 Cal.Rptr.3d 824, 163 Cal.App.4th 762, review denied, habeas corpus denied 2012 WL 601606.

Evidence of details of alleged sexual conduct between complaining witness and another person was inadmissible at trial for lewd or lascivious act on child age 14 or 15 to show witness’s alleged bias or motive to accuse defendant, who was the lay pastor at the church attended by the witness and her parents; several witnesses testified regarding defendant’s interference in the witness’s relationship with the other person and her friendship with another complaining witness, there was testimony that witness hated defendant because of the interference, and the details of the relationship were at best tangentially related to the witness’s feelings toward defendant and to any bias or motive to lie.  People v. Bautista (App. 6 Dist. 2008) 77 Cal.Rptr.3d 824, 163 Cal.App.4th 762, review denied, habeas corpus denied 2012 WL 601606.

Evidence of the prior sexual contacts of a victim of child molestation was excludable in a prosecution of the victim’s father for lewd conduct, inasmuch as the evidence, even if relevant under the statutory rule of limited admissibility of such contacts, was more prejudicial than probative; defendant was accused of touching the victim’s genitals and taking a shower with her, and the prior incidents, some of which did not involve genital contact or conduct by a male, were not similar to the charged lewd conduct, making the relevance minimal and the risk of confusing the jury palpable.  People v. Woodward (App. 3 Dist. 2004) 10 Cal.Rptr.3d 779, 116 Cal.App.4th 821, review denied, motion to recall remittitur denied.

Evidence of prior sexual contacts of a victim of child molestation was not admissible in a prosecution of the victim’s father for lewd conduct, pursuant to statutory rule of limited admissibility of such contacts, inasmuch as the prior sexual contacts were dissimilar to the charged crimes; defendant was accused of touching the victim’s genitals and taking a shower with her, but during the first incident of prior sexual contact the victim was blindfolded and the contact was oral and digital, the second incident did not involve lewd conduct by a male, the third incident had no genital exposure, and the fourth incident involved a pencil.  People v. Woodward (App. 3 Dist. 2004) 10 Cal.Rptr.3d 779, 116 Cal.App.4th 821, review denied, motion to recall remittitur denied.

In prosecution for committing lewd and lascivious act upon defendant’s stepdaughter, and unlawful sexual intercourse with her, and committing lewd and lascivious act upon daughter, court correctly refused to allow questioning about sexual life or pregnancy of stepdaughter;  attempt to impeach stepdaughter by fishing for evidence of unchaste behavior was improper, and court did not err in limiting cross-examination based on theory of recent fabrication.  People v. Fritts (App. 2 Dist. 1977) 140 Cal.Rptr. 94, 72 Cal.App.3d 319.

In prosecution for committing lewd acts on a child under 14 years of age, defendant would not be deemed to have been unduly restricted in cross-examination, where apparent purpose of such questions was to show association by prosecuting witness with other persons, and possibility of her engaging in like immoral acts with them, since misconduct with others would in no way tend to prove defendant did not so act.  People v. Pilgrim (App. 1958) 160 Cal.App.2d 528, 325 P.2d 143.

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90. Evidence of the Victim’s Prior Allegations of Molestation

In prosecution for lewd conduct with child under the age of 14 and unlawful sexual intercourse, defendant was not entitled to introduce evidence that victim had previously filed charge of unlawful sexual intercourse out of fear of her mother, telling her sister that it had not actually occurred, where accused in that prior case had pled guilty to charge of unlawful sexual intercourse and victim was thus truthful.  People v. Perkins (App. 2 Dist. 1982) 180 Cal.Rptr. 763, 129 Cal.App.3d 15.

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91. Evidence of injury to the victim

In prosecution for committing lewd and lascivious act upon the body of a four year old girl, the testimony of the child’s mother and that of the examining physician as to the extent of injuries to the girl were sufficient proof of the corpus delicti to justify the admission of the statements of the defendant.  People v. Smith (App. 1950) 100 Cal.App.2d 162, 223 P.2d 82.Criminal Law Key Number 413.81(22)

Evidence that man had abducted four-year-old girl, coupled with mother’s testimony that the child’s sexual organs had been injured and that there were black and blue marks on the outside of the child’s thighs, was sufficient to establish the corpus delicti of offense described in this section relating to crimes against children.  People v. Mohr (App. 2 Dist. 1938) 24 Cal.App.2d 580, 75 P.2d 616.

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92. Evidence of the victim’s emotional or mental state

In sex offense cases, trial court has discretion to allow admission of psychiatric evidence as to mental and emotional condition of complaining witness for purpose of impeaching her credibility, but such opinion must inform jury of “ability” of witness to tell truth, not provide ultimate conclusion about witness’ truthfulness on particular occasion.  People v. Castro (App. 6 Dist. 1994) 35 Cal.Rptr.2d 839, 30 Cal.App.4th 390, review denied.

Trial court could not admit family therapist’s proposed testimony that alleged child molestation victim’s claim that defendant had molested her was false;  rule permitted admission of psychiatric evidence as to mental and emotional condition of complaining witness only for purpose of assessing “ability” to tell the truth.  People v. Castro (App. 6 Dist. 1994) 35 Cal.Rptr.2d 839, 30 Cal.App.4th 390, review denied.

Testimony that prosecuting witness was mentally deficient and emotionally unstable was inadmissible in prosecution for committing lewd and lascivious acts on a child.  People v. Dye (App. 3 Dist. 1947) 81 Cal.App.2d 952, 185 P.2d 624.

In prosecution for committing lewd act on 11 year old girl, exclusion of question asked accused’s wife as to condition and demeanor of such girl and another girl after certain trip was prejudicial error.  People v. Vaughan (App. 2 Dist. 1933) 131 Cal.App. 265, 21 P.2d 438.

In prosecution for committing lewd acts on 11 year old girl, refusal to permit cross-examination of complaining witness as to whether she was not afraid of accused when she went with him on certain fishing trip was prejudicial error.  People v. Vaughan (App. 2 Dist. 1933) 131 Cal.App. 265, 21 P.2d 438.

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93. Evidence of Physical Examinations of the Victim

Magistrate’s refusal to compel child victims of sexual abuse to submit to physical examinations was not abuse of discretion, where physical examination could at best produce results equivocal on defendants’ innocence, and examination, encompassing insertion of finger into rectum, had potential for psychological harm to child victim who had stated that examination would make him think of prior acts of molestations which occurred by insertion of finger into his anus.  People v. Nokes (App. 5 Dist. 1986) 228 Cal.Rptr. 119, 183 Cal.App.3d 468, review denied.

Peremptory writ of mandate would issue for purpose of ordering superior court to hold an evidentiary hearing for resolution of factual issues surrounding physical examination of three minor females by a medical expert for prosecution in a lewd conduct case, including whether trial court’s order permitting examination required People to notify defendant and/or trial court of date and time of examination to allow defendant to have a medical observer present, if so, whether People’s failure to provide such notification was inadvertent or willful and in bad faith, what, if any, prejudice was suffered by defendant by virtue of failure to receive prior notice of examination, and whether any prejudice could be cured.  Mendibles v. Superior Court (People) (App. 2 Dist. 1984) 208 Cal.Rptr. 841, 162 Cal.App.3d 1191.

Testimony of physician, who examined child, that there were abrasions in her crotch and that she was suffering from vaginitis was admissible in prosecution for commission of lewd and lascivious acts on body of child.  People v. Banos (App. 3 Dist. 1962) 26 Cal.Rptr. 127, 209 Cal.App.2d 754.

In prosecution for violation of this section, relating to crimes against children, permitting a doctor to testify relative to a pelvic examination of prosecuting witness made approximately a month after commission of alleged acts was not prejudicial error where the time element was before the jury to be considered by it in determining the weight to be given the doctor’s testimony.  People v. Arrangoiz (App. 2 Dist. 1937) 24 Cal.App.2d 116, 74 P.2d 789.

In prosecution for child molestation and incest, people’s showing in support of request for medical test of defendant for possible trichomoniasis was inadequate to justify it, since intrusion, consisting essentially of prolonged massage of prostate gland, through rectum, to induce involuntary ejaculation, was very substantial and constituted significant invasion of both dignity and privacy, such procedure was not routinely conducted in medical examinations and evidence sought was highly circumstantial and speculative, though relevant, and test lacked reliability.  People v. Scott (1978) 145 Cal.Rptr. 876, 21 Cal.3d 284, 578 P.2d 123.

 

In prosecution for lewd acts committed on eight year old female, where there was evidence that victim developed a veneral disease several days after alleged offense, question of sufficiency and accuracy of examination and tests made on defendant to determine whether he had gonorrhea at time of alleged offense was an issue for the jury.  People v. Lammers (App. 4 Dist. 1951) 108 Cal.App.2d 279, 238 P.2d 667.

Defendant’s conviction for forcible lewd conduct with child was based on conduct showing probable cause to believe that bodily fluids had been transferred from defendant to victim and, thus, there was sufficient evidence to support order for AIDS testing; evidence showed that defendant got on top of victim and had his penis between her thighs, victim tried to fight him off, victim hit him, kicked him and bit him, and victim testified that defendant continued to try to penetrate her until he “finally gave up.”  People v. Caird (App. 2 Dist. 1998) 73 Cal.Rptr.2d 799, 63 Cal.App.4th 578, rehearing denied, review denied, grant of habeas corpus affirmed 2004 WL 1925877, unpublished.

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94. Blood Test Evidence

Expert testimony that semen stains on victim’s nightgown were from a man with type A blood was relevant and admissible, in prosecution of dependent who had type A blood, even though 40 percent of world’s population has type A blood.  People v. Vallez (App. 1 Dist. 1978) 143 Cal.Rptr. 914, 80 Cal.App.3d 46.

Where, in prosecution for lewd or lascivious acts upon body of child under 14, the child, who gave birth to a baby, testified, at preliminary examination, that she had never had sexual intercourse with any person other than defendant, defendant’s request, in an ex parte proceeding prior to trial, that a blood test be taken to establish parentage was timely made, and trial court should have ordered the tests made under proper supervision and adequate safeguards, and refusal or neglect to proceed with the blood tests pursuant to defendant’s request constituted a miscarriage of justice.  People v. Bynon (App. 1956) 146 Cal.App.2d 7, 303 P.2d 75.

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95. Admitting the child’s clothing as evidence in a PC 288 case

Statute prohibiting lewd and lascivious acts with a child under the age of 14 is violated by person who directs children to take off their clothing, even if they do not initially remove their underwear.  People v. O’Connor (App. 2 Dist. 1992) 10 Cal.Rptr.2d 530, 8 Cal.App.4th 941, review denied.

In prosecution for crime against girl seven years of age, the child’s stained clothing and that of defendant were admissible in evidence.  People v. Clark (App. 1951) 104 Cal.App.2d 634, 232 P.2d 290.

In prosecution for lascivious conduct toward a twelve year old girl, evidence that there was a stain or spot on the girl’s clothes as the result of the defendant’s acts tending to arouse her passions, was admissible.  People v. Robinson (App. 1948) 87 Cal.App.2d 772, 197 P.2d 776.

 

Evidence showing that defendant removed panties from child, who then ran away and escaped any further lustful actions, supported conviction under this section, prohibiting lewd or lascivious act upon body of child.  People v. Lanham (App. 1934) 137 Cal.App. 737, 31 P.2d 410.

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96. Photographic Evidence in PC 288 Cases

Photographs which were admitted in prosecution for lewd and lascivious conduct and for oral copulation with a child and which were of other boys in the nude were admissible as constituting part of the offense with which defendant was charged, as pertaining to the occasion in issue in the current action, and as tending to discredit defendant’s extrajudicial statement that he took photographs of victim only because victim asked him to so that he could show them to his girlfriend, refute any inference that it was victim who initiated sexual conduct, and challenge implication that defendant was just a “big brother” to victim, “a family friend” and a “father” figure.  People v. Reeves (App. 2 Dist. 1980) 164 Cal.Rptr. 426, 105 Cal.App.3d 444.

Introduction into evidence in prosecution charging defendant with two counts of sex perversion and third count of the infamous crime against nature allegedly committed against certain minor, of photographs showing male and female persons in various poses of sexual intercourse and photograph of nude woman was not error where the minor stated that photographs had been shown to him by defendant before the acts in question took place and where trial was before judge and not a jury.  People v. Gann (App. 4 Dist. 1968) 66 Cal.Rptr. 508, 259 Cal.App.2d 706.

In prosecution for violation of this section, where acts complained of occurred during taking of photographs of girls involved, and defendant claimed that the pictures were artistic and not obscene, admitting the photographs in evidence was proper where they corroborated the testimony of each girl respecting defendant’s conduct with the other girl and with herself.  People v. Batsford (App. 1949) 91 Cal.App.2d 607, 205 P.2d 731.

Evidence in prosecution for committing lascivious crimes upon female child that defendant exhibited obscene pictures, corroborated by police officer’s testimony as to obscenity, was admissible to show lewdness of purpose.  People v. Linton (App. 1 Dist. 1929) 102 Cal.App. 608, 283 P. 389.

Jury was not required to find that defendant possessed images indicative of child pornography with the specific intent to possess child pornography, in order to consider the images as evidence of uncharged acts to prove intent in trial for attempted lewd or lascivious act on a child under 14 and attempted distribution or exhibition of harmful matter to a minor; the volume of images and the fact that they were found in several different locations on defendant’s computer made them relevant to establish his knowledge of their existence on his computer, and to establish the diminishing likelihood that their presence on his computer was inadvertent.  People v. Garelick (App. 6 Dist. 2008) 74 Cal.Rptr.3d 815, 161 Cal.App.4th 1107, review denied.

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97. Appellate Review of Defendant’s Conviction under PC 288

 

Trial court adequately pronounced judgment following defendant’s no contest pleas to six counts of lewd and lascivious conduct by imposing a specific fine and generally referring to the applicable penalty assessments; court orally imposed $500 fine “plus penalty assessment,” without specifying the amount of the assessment, and minute order and abstract of judgment identified a “PA,” or penalty assessment, of $1,325.  People v. Voit (App. 6 Dist. 2011) 133 Cal.Rptr.3d 431, 200 Cal.App.4th 1353, review denied.

Trial court’s error, in failing to give unanimity jury instruction as to the acts supporting defendant’s convictions of five counts of lewd and lascivious behavior with a child under the age of 14, was not prejudicial to defendant, since it was not reasonably probable that a result more favorable to defendant would have been reached in the absence of the instructional error, where the number of counts charged was based on the victim’s unequivocal testimony that for several months a week never went by without a rape occurring, and there could be no confusion in the jury’s mind that they were being asked to decide whether defendant engaged in sexual conduct with the victim on five occasions over that period of time.  People v. Arevalo-Iraheta (App. 4 Dist. 2011) 124 Cal.Rptr.3d 363, 193 Cal.App.4th 1574.

Trial court’s failure to impose state and county statutory penalty assessments in addition to sex offender fine against defendant who was convicted of 10 counts of committing a lewd act upon a child was jurisdictional error that could be raised for first time on appeal, even though prosecutor never raised issue in trial court.  People v. Stewart (App. 2 Dist. 2004) 12 Cal.Rptr.3d 171, 117 Cal.App.4th 907, as modified.

Defendant’s claim that trial court erred in imposing consecutive sentences on sex offenses committed against the same victim on separate occasions was a claim of unauthorized sentence that was reviewable despite defendant’s failure to object at sentencing.  People v. Maharaj (App. 3 Dist. 2012) 139 Cal.Rptr.3d 140, 204 Cal.App.4th 641, review denied.

Defendant who did not object on any basis to denial of probation for lewd acts on child victim with substantial sexual conduct did not forfeit his claims that sentencing court erred in not considering whether it would have been in “best interest” of victim at time of offenses to sentence defendant to probation, for purposes of rebutting presumption of defendant’s ineligibility for probation, since appeal raised question of law of whether presumption could be rebutted after victim became an adult.  People v. Wills (App. 4 Dist. 2008) 73 Cal.Rptr.3d 104, 160 Cal.App.4th 728, review denied.

Defendant waived argument on appeal that trial court erred in failing to consider, on resentencing, letters in mitigation that defendant submitted belatedly in connection with his original sentencing in sexual abuse prosecution; at outset of resentencing hearing, trial judge listed materials he had reviewed, which did not include defendant’s letters in mitigation, and when court asked whether there was anything else to consider, defendant’s counsel responded “no.”  People v. Burbine (App. 1 Dist. 2003) 131 Cal.Rptr.2d 628, 106 Cal.App.4th 1250, review denied, appeal from dismissal of hapeas corpus dismissed 445 Fed.Appx. 923, 2011 WL 3290007.

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98. Appellate Review of Prosecutors Conduct in Defendant’s Trial

Prosecutor’s argument, in the absence of evidence that defendant personally performed an abortion on victim, that the act of “having an abortion” could constitute great bodily injury for purposes of sentence enhancement for the offense of lewd act on child under age of 14, was harmless, even though jury heard evidence that defendant facilitated abortion, and trial court instructed jury that an abortion could constitute great bodily injury, since jury would have interpreted prosecutor to be arguing that defendant personally inflicted pregnancy rather than the abortion, and jury would not have been misled into believing that defendant personally performed the abortion.  People v. Cross (2008) 82 Cal.Rptr.3d 373, 45 Cal.4th 58, 190 P.3d 706.

Prosecutor’s argument in prosecution for committing lewd acts on a child, that defendant moved back in with victim’s mother in violation of parole because he had uncontrollable urge to molest victim and victim’s sister, did not constitute misconduct; while there was no direct evidence that defendant had predatory predilection, evidence strongly suggested as much.  People v. Yovanov (App. 4 Dist. 1999) 81 Cal.Rptr.2d 586, 69 Cal.App.4th 392, review denied.

Prosecutor committed no misconduct by offering minor victim’s allegedly perjured trial testimony, which contradicted her taped interview by defense counsel and much of her preliminary hearing testimony; after defendant was arrested and charged with sex offenses against victim, he contacted victim and urged her to call defense counsel and say all sex acts occurred after victim was 16 years old, defendant gave victim cellular phone and money, told her he loved her, and mentioned future marriage.  People v. Nwafor (App. 2 Dist. 1996) 53 Cal.Rptr.2d 564, 46 Cal.App.4th 39, rehearing denied, review denied.

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99. Appellate Review of whether the defendant received effective assistance from his legal counsel

Defense counsel’s failure to call letters in mitigation to trial court’s attention in connection with resentencing did not prejudice defendant, and thus could not amount to ineffective assistance of counsel in sexual abuse prosecution; letters were not entitled to any mitigating value since letters were all premised on expressions of defendant’s innocence, and defendant failed to point to facts upon resentencing to alter conclusion that there was no reasonable probability that court would have imposed lesser sentence if judge had reviewed letters.  People v. Burbine (App. 1 Dist. 2003) 131 Cal.Rptr.2d 628, 106 Cal.App.4th 1250, review denied, appeal from dismissal of hapeas corpus dismissed 445 Fed.Appx. 923, 2011 WL 3290007.

Failure of state court defense counsel to object to introduction of defendant’s juvenile adjudication for prior sexual offense, in prosecution for aggravated sexual assault on a child under 14 years of age and more than 10 years younger than defendant and forcible lewd and lascivious conduct on child under 14 years of age, did not amount to ineffective assistance of counsel, where defendant failed to establish that such conduct fell below objective standard of reasonableness and there was not reasonable probability that, but for such failure on counsel’s part, result of trial would have been different.  Salazar v. Adams, C.A.9 (Cal.)2008, 291 Fed.Appx. 57, 2008 WL 3861888, Unreported.

Trial counsel did not render ineffective assistance under Sixth Amendment, even though counsel did not object to admission of pretrial interviews of minor, who was sexual assault victim, that were allegedly obtained through use of highly suggestive interview tactics; victim was expected to testify at trial, so trial counsel made reasonable tactical decision not to object to introduction of pretrial interviews and to use expert’s testimony about interviews’ deficiencies to attack victim’s credibility.  Garcia v. Garcia, C.A.9 (Cal.)2002, 45 Fed.Appx. 768, 2002 WL 2022097, Unreported.

Trial counsel’s failure to request limiting instruction, i.e., that jury could consider statements by minor, who was sexual assault victim, to mother to show only that victim complained and not for truth of matter, although error, was not prejudicial, for purpose of defendant’s ineffective assistance of counsel claim; mother’s testimony was unnecessary to establish defendant’s guilt since jury credited victim’s testimony or her pretrial statements about the abuse.  Garcia v. Garcia, C.A.9 (Cal.)2002, 45 Fed.Appx. 768, 2002 WL 2022097, Unreported.

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100. Habeas Corpus in PC 288 Cases

Admission of evidence of defendant’s prior sex crimes in his trial for multiple sex crimes against his granddaughters, pursuant to California rule excepting such evidence from the general ban on propensity evidence passed into law after crimes were committed but before trial, did not affect the quantum of evidence sufficient to convict and did not violate defendant’s right to be free from retroactive punishment, and thus, defendant was not entitled to habeas relief, as the use of such evidence was not contrary to United States Supreme Court law governing the applicability of the Ex Post Facto Clause to the admissibility of such evidence, even though the rule allowed for the admission and a conviction upon different evidence than was required at the time of offense and allowed the jury to consider prior sexual misconduct in weighing guilt; allowing the jury to view such evidence did not mean that jury could rely solely on the uncharged acts to convict, as nothing in rule provided that such evidence would suffice to prove all of the elements of a violation of lewd or lascivious acts statute.  Schroeder v. Tilton, C.A.9 (Cal.)2007, 493 F.3d 1083.

Evidentiary hearing on habeas corpus petition was warranted to resolve factual issue over whether defense counsel, by allegedly telling defendant he could accept plea offer or have a sham trial at which counsel would present no evidence and by allegedly misrepresenting sentence to be imposed under plea offer, coerced defendant into entering nolo contendere plea to child sex abuse charges.  In re Vargas (App. 2 Dist. 2000) 100 Cal.Rptr.2d 265, 83 Cal.App.4th 1125, review denied.

State court’s holding that substantial evidence showed that petitioner conspired to both create child pornography and commit a lewd and lascivious act upon a child did not unreasonably apply clearly established federal law, as required to grant federal habeas relief; there was sufficient evidence for rational jury to find that petitioner and coconspirator agreed to pose or model the victim to create images exhibiting victim’s genitals or pubic or rectal area for purpose of viewer’s sexual stimulation, and to have petitioner cause or instigate victim to remove his clothes for petitioner’s sexual gratification.  Casey v. Martel, C.A.9 (Cal.)2012, 468 Fed.Appx. 671, 2012 WL 389121, Unreported.

State trial court’s exclusion of expert testimony in defendant’s prosecution for lewd conduct with a child, was neither contrary to, nor did it involve an unreasonable application of, clearly established federal law, so as warrant federal habeas relief; even though testimony would have assisted the jury to evaluate the truthfulness of substantive evidence, such as victim’s testimony, exclusion did not deny defendant a meaningful opportunity to present a complete defense because he was not precluded from introducing factual evidence.  Gonzalez v. Woodford, C.A.9 (Cal.)2007, 261 Fed.Appx. 68, 2007 WL 4513585, Unreported.

Nevada appellate court’s finding that defendant knew the nature of the proceedings against him, nature of the crime charged, and the consequences of what was happening, and thus knowingly and intelligently waived counsel, was not contrary to, nor did it involve an unreasonable application of, clearly established federal law, and therefore enhancement of sentence, in subsequent California prosecution for 22 counts of lewd acts with a child under 14, on basis of the prior conviction, did not warrant habeas relief; decision was not contrary to Gideon v. Wainright, and was not unreasonable given the trial judge’s testimony.  Leyva v. Ayers, C.A.9 (Cal.)2004, 89 Fed.Appx. 1, 2004 WL 78206, Unreported.
*Court Decisions Relating to Lewd and Lascivious Acts with a Minor (CPC 288) (2013). WestLaw Next. Retrieved from http://next.westlaw.com on April 15, 2013.
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