[Opinion certified for partial publication.
Joseph Levesque appeals his convictions of violating Penal Code section 288, subdivision (a),
In August of 1992, appellant went on a picnic with J.J., age 12, Rosalia, age 9, their mother and their stepfather. Kerlett, age 7, and her parents also joined them. The four parents eventually left the children with appellant.
Appellant drove the children to an ice cream parlor. While they were there, Kerlett looked underneath the table and saw that appellant's penis was exposed underneath his shorts. She told Rosalia who also looked and saw it. J.J. noticed it as well.
Appellant then took the children to a pet store where he bought goldfish for J.J. After the pet store, appellant took the children to his home. Appellant telephoned Kerlett's mother, telling her that the kids would be home in half an hour.
At first all three of the children went to the weight room. J.J. began using the weights. Appellant left the room, and the two girls followed soon thereafter. Rosalia testified that appellant turned on a "nasty movie" and said, "Look." Kerlett did not remember the video. When J.J. joined them in the living room a few seconds later he saw that a Playboy movie was being played on the video cassette recorder (VCR). He tried to turn it off. He told Rosalia and Kerlett to go outside because he didn't think they should watch the movie, and announced that they were all going to leave. J.J. pulled Rosalia outside and go into appellant's car. Kerlett soon followed. Appellant did not come out. Kerlett persuaded J.J. and Rosalia to return to the house so that they could play with appellant's video camera.
Appellant's defense was that he was simply indulging in the playful stunt of "mooning" the camera. Hilda Gilgannon, a family friend of appellant's testified that after appellant was arrested she received a telephone call from Kerlett's father. He suggested that a donation of money or property might solve appellant's problem. Gilgannon understood these comments as a suggestion that the charges might be dropped in exchange for money or property. She told him: "This is bribery and I don't go for that." Cheryl Gilbertson, who works for Gilgannon, was present when Gilgannon received this call and listened in on the conversation. She confirmed that he asked for money or a donation.
Isabella Parsons, appellant's sister, testified that she had been staying with appellant, and that she had left an adult videotape in the VCR.
Definition of a Lewd Act
In People v. Wallace (1992) 11 Cal.App.4th 568 [14 Cal.Rptr.2d 67], the court held this definition of a lewd act is erroneous. The Wallace court opined that if a lewd act is defined as "any touching" with the requisite intent, a defendant could be convicted based on a "touching" which, viewed independently from the defendant's intent, appears totally innocuous. The court concluded that the touching itself must be lewd, otherwise a defendant "could be convicted for his or her thoughts, regardless of his or her deeds." (Id. at pp. 578-579.) The Wallace court proposed that a lewd act instead be defined as, "any touching of a body of the child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire." (Id. at p. 579, original italics.)
The 1993 revision of CALJIC No. 10.41 attempted to incorporate the definition of a lewd act suggested in People v. Wallace, supra, 11 Cal.App.4th 568. CALJIC No. 10.41 now states, in pertinent part, "A lewd or lascivious act is defined as any touching of the body of a person under the age of fourteen years [with the specific intent 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.]" (CALJIC No. 10.41 (1993 rev.) italics added.)
In this case, the trial court resolved the dilemma concerning which definition to use by giving both definitions to the jury, in the following instruction: "A lewd or lascivious act is defined as any touching ... with the specific intent to arouse, appeal to, or gratify the sexual desires of either party or which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire."
Appellant's primary contention is that, because this instruction left the jury to decide which definition of a lewd act to apply, the jury may have convicted him based on the traditional definition of a lewd act as "any
In People v. Scott (1994) 9 Cal.4th 331, 344, fn. 7 [36 Cal.Rptr.2d 627, 885 P.2d 1040], our Supreme Court referred to this emerging split of authority, noting "that a few cases have rejected the notion that `any' touching of an underage child violates section 288. These cases define the requisite act in somewhat narrower terms, as follows: `[A]ny touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire.' [Citations.] [¶] On the one hand, this language correctly implies that the less overtly sexual the act, the more likely the inference that it was not intended to arouse either party. The cases have always assumed that the trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent. (See, e.g., People v. Owen (1945) 68 Cal.App.2d 617, 619 [157 P.2d 432].) On the other hand, by requiring an act which is patently `sexual' in nature as well as intent, the Wallace [court] has created uncertainty as to the precise definition of a `lewd or lascivious act.'" The court, in Scott found it unnecessary to decide which definition is correct because the convictions in Scott were all based on acts that were "clearly `lewd' under any reasonable or existing construction of the statutory language." (People v. Scott, supra, at p. 344, fn. 7.)
The question whether the traditional definition of a lewd act needs to be modified, and whether the new definition proposed in Wallace should be adopted is now pending before the Supreme Court in several cases, including, People v. Dablon (1994) 34 Cal.App.4th 372 [34 Cal.Rptr.2d 761]
We are persuaded by the analysis of People v. Marquez, supra, 28 Cal.App.4th 1315 and People v. Sharp, supra, 29 Cal.App.4th 1772, that the alternative definition of a lewd act proposed by the Wallace court, and incorporated in the 1993 revision of CALJIC No. 10.41, unduly restricts the application of section 288, subdivision (a), by requiring that the jury find the "touching" is lewd without regard to the intent with which the touching is done. These criticisms of the alternative definition proposed in Wallace, have also persuaded us that the question whether the defendant has committed a "lewd act" must be determined in light of all of the circumstances, including the defendant's intent. Accordingly, we shall uphold the traditional definition of a lewd act, and disapprove our decision in People v. Gaglione (1994) 26 Cal.App.4th 1291 [32 Cal.Rptr.2d 169], to the extent that it is to the contrary.
The Wallace court correctly observed that one of the elements of a section 288, subdivision (a), offense is the commission of a "lewd act" upon or with the body of a child.
We, however, find nothing in the language of section 288, subdivision (a), to support the Wallace court's further conclusion that the jury must be
The traditional definition of a lewd act as "any touching" with the requisite intent, recognizes that whether an act is lewd or innocuous cannot be determined without regard to the intent with which it is done. Moreover, by not attempting to limit the type of touching that may be found lewd, this definition recognizes the fact that sexual behavior, especially deviant sexual behavior towards children, encompasses a wide range of conduct that would not be immediately recognizable as "sexual" except when considered from the defendant's perspective, and in light of his or her intent. For these reasons, prior to Wallace, the traditional definition of a lewd act, which includes consideration of the defendant's intent in determining whether a touching is lewd and lascivious, had been "approved for use for nearly a quarter of a century." (People v. Sharp, supra, 29 Cal. App.4th at p. 1790, fn. 8.) As the court explained over 40 years ago, in People v. Hobbs (1952) 109 Cal.App.2d 189, 192 [240 P.2d 411]: "In all cases arising under [section 288] 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. In People v. Owen , 68 Cal.App.2d 617, 620 [157 P.2d 432], it is said that `It is not the accomplishment but the intent of the party that is the basis of the commission of the acts condemned in Penal Code section 288.' If intent of the act, although it may have the outward appearance of innocence, is to arouse, or appeal to, or gratify the lust, the passion or the sexual desire of the perpetrator it stands condemned by the statute, or, if it is intended to arouse feelings of passion or sexual desire in the child, it likewise stands condemned." (People v. Sharp, supra, 29 Cal. App.4th at p. 1791, italics in original.)
Appellant further argues that the court's modification of the 1993 revision of CALJIC No. 10.41, offering the two definitions in the alternative, might have been understood by the jury as permitting a conviction without a finding that the defendant had the intent to arouse or gratify the sexual desires of either party. He asserts the jury might have believed it should convict him of the section 288, subdivision (a), violation, if it found that defendant touched the victim with the required intent "or" if it found the defendant touched the victim, "in a way which to an objectively reasonable person" would appear lewd, but with no intent. This construction is not reasonable if the instructions are considered as a whole. (People v. McPeters (1992) 2 Cal.4th 1148, 1191 [9 Cal.Rptr.2d 834, 832 P.2d 146]; People v. Kelly (1992) 1 Cal.4th 495, 526-527 [3 Cal.Rptr.2d 677, 822 P.2d 385].) The court also instructed the jury that, "... there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator." The court further informed the jury that, "In order to prove the crime, each of the following elements must be proved. 1. A person committed a lewd or lascivious act upon the body of a child, 2. The child was under 14 years of age, 3. Such act was committed with the specific intent to arouse, appeal to, or gratify the lust, passions or sexual desires of such person or of the child." (Italics added.) No reasonable juror would have understood this
Substantial Evidence Supports the Section 288, Subdivision (a), Conviction
The evidence was conflicting concerning whether appellant actually touched Kerlett's bare buttocks. J.J. did, however, testify that appellant touched Kerlett's buttocks with his hands. Even if appellant did not actually touch Kerlett's buttocks, section 288, subdivision (a), does not require that any particular part of the body be touched. (People v. Raley (1992) 2 Cal.4th 870, 907 [8 Cal.Rptr.2d 678, 830 P.2d 712].) The contact involved in placing Kerlett over his knees, or in pulling down her pants would also suffice. There was some conflict in the evidence over whether appellant himself pulled down Kerlett's pants, because J.J. wasn't sure if he actually saw appellant do this. Rosalia, however unequivocally testified that she saw appellant pull Kerlett's pants down and Kerlett confirmed this.
In addition, substantial circumstantial evidence supported the inference that appellant performed this act with the requisite intent. Earlier in the day he bought the children ice cream and allowed them to see his penis protruding from his shorts. He brought the children to his home and showed them a pornographic film. J.J. was so sure that the film was inappropriate that he wanted to leave, and demanded that his sister leave too. When the children decided to stay in order to play with the video camera appellant bared his own buttocks and directed the children to look at him. When he became more bold, and placed Kerlett over his knee and pulled down her pants, J.J. recognized immediately that this went beyond playfulness. J.J. stopped the activity and demanded to be taken home. Appellant then told the children not to say anything to their parents. This evidence of appellant's intent distinguishes the case from People v. Mansell (1964) 227 Cal.App.2d 842 [39 Cal.Rptr. 187],
Failure to Give Unanimity on Count 2
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Exclusion of Testimony
Outside the presence of the jury, she testified that she was homeless and under the influence of drugs when she wrote the note, and she did not recall giving it to anyone. She did recall having a conversation with a man at Hilda Gilgannon's house, but did not recall Lipkin or any details of their conversation. She did not recall telling Lipkin that: Kerlett had pushed the tape into the VCR and started it; the kids say that Kerlett jumped on [appellant's] lap, Kerlett's pants were baggy and probably came down by themselves; Kerlett's likes to make up stories and likes attention; Kerlett's father called Kerlett's vagina his "toy," or that he suggested asking for $50,000 to drop the charges.
Lipkin testified by way of an offer of proof that she did make these statements to him, although he could not confirm that all of her statements were based on things the children had said to her.
The court correctly ruled that Lipkin could not testify to the statements that the mother herself could not recall having made. Lipkin's testimony was
Nor would Lipkin's testimony be admissible as prior inconsistent statements of the children for several reasons: appellant's counsel did not lay the appropriate foundation pursuant to Evidence Code section 770, by asking the children whether they had made such statements to their mother and giving them an opportunity to explain them. It was not an abuse of discretion to refuse defense counsel's request to recall the children for that purpose. Defense counsel had the opportunity to lay the foundation during cross-examination and did not do so. The court was also concerned that the children had been emotionally distraught during their testimony, and that to recall them would cause further distress. In any event, even with the appropriate foundation, the statements could only have come in as prior inconsistent statements of the children if their mother testified as to what the children told her. Appellant, however, wanted Lipkin to testify as to what the mother told him that the children told her. As we have already explained Lipkin's testimony could not come in as prior inconsistent statements. Thus, appellant failed to establish that each level of hearsay fell within the prior inconsistent statements exception.
All of appellant's other arguments as to the admissibility of Lipkin's testimony concerning each of the statements the mother allegedly made to Lipkin fail for the same reason: Appellant failed to establish a hearsay exception for Lipkin to testify as to what she said to him.
Assuming arguendo that the written statement might have been admissible because, outside the jury's presence, she did acknowledge writing it but stated it was false, exclusion of the statement was harmless. The note did not identify who had "lied" or how she knew that "they" had lied. The statement in her note concerning the efforts to obtain money in exchange for dropping the charges was cumulative of the testimony offered by Hilda Gilgannon, and corroborated by Cheryl Gilbertson. (People v. Watson, supra, 46 Cal.2d 818, 836.)
Section 667.51, subdivision (d) provides that, "A violation of section 288 by a person who has been previously convicted two or more times of an offense listed in subdivision (c) is punishable as a felony by imprisonment in the state prison for 15 years to life." The offenses listed in subdivision (c) of section 667.51 include sections 261 and 288. The information alleged, and the court found true, prior convictions under both of those sections.
Section 647.6 provides that any person who violates that section after a prior conviction under section 288 is "punishable by imprisonment in the state prison for two, four, or six years." The information alleged the same section 288, subdivision (a), conviction in this count.
Appellant argues that the sentences imposed under sections 667.51, subdivision (d), and 647.6 are enhancements, and that section 654 prohibits use of the same prior conviction to enhance both sentences.
Second, even if these provisions were "enhancements," section 654 would not preclude sentencing appellant under both provisions, even though the
The judgment is affirmed.
Strankman, P.J., and Dossee, J., concurred.
Petitions for a rehearing were denied June 29, 1995, and the opinion was modified to read as printed above.
[*] Reporter's Note: Opinion deleted upon direction of Supreme Court by order dated July 14, 1994 (E010783).