*1 No. 3998. Fifth Dist. Oct. [Crim. 1980.] PEOPLE,
THE Plaintiff and Appellant, AUSTIN,
WILLIAM DONALD Defendant Respondent.
Counsel Winkler, General, Chief Assistant Jack R. Attorney
George Deukmejian, General, General, Attorney Assistant Arnold O. Overoye, Attorney General, Deputy Attorneys Thomas R. Yanger, James T. McNally Appellant. for Plaintiff and
Walter L. Sevier, Defenders, Gorelick and Gerald F. Public James T. Wilson, Defender, Killmer, Assistant Public Public Kay Deputy Defender, for Defendant and Respondent.
Opinion Following preliminary hearing, respondent
PIERSON, Austin J.* one, (Pen. Code, was in an charged information count kidnaping 207) two, (Pen. Code, 288). and count upon lewd act a child § § Construed favorably prosecution, the evidence at the preliminary established hearing the following: 13, 1978,
On Miss M. was with her July eight-year-old tag playing Respondent brother and two cousins on the of a church in Ivanhoe. steps drove to the church in his with an knife in up pickup, open out got Alarmed, his hand and the children. the children ran to approached some bushes but came Austin asked “Do respondent’s request. out want to make a He he would tell her you couple of bucks?” told M.
what to her Miss was indecisive and pull pants.” down M. do—“just Austin her to a M.’s brother pushed guided nearby orange grove.
R., 12, followed his sister. age knife, his but
Once Austin closed the blade on orange grove, it in his He told M. to take down her M. pants. continued to hold hand.
was fearful do with the knife so she complied of what Austin might was a dollar by with his She then her request. pulled up pants given money by allowing Austin. He asked if she wanted to make some more Austin did not him to touch her. She declined and the children left. touch her thereafter. when took her down nor did he pants
touch M. she motion, the trial At a Penal Code section 995 hearing respondent’s had occurred. touching two on the that no ground court dismissed count The district attorney appealed. Necessary Touching
A of the Victim Is to Commit a Violation Penal Section Code Code section cases have construed reported A number large attention, nor are we aware of to our has been brought 288. No case * the Judicial Council. Assigned by Chairperson of In People of the victim. touching involve a did not factually which
any, the court 694], Cal.App.2d v. Coontz [259 “The only section 288 of Penal Code a violation stated that to commit was also This language with lustful intent.” a touching is requirement Cal. (1967) 254 v. Morales cited in the decision in necessary was not the statement Rptr. Although 764]. that a with which we case, agree view it sets forth a common
either (See v. section. also People violate the code necessary 25].) Cal.Rptr. 26 Cal.App.3d Roberts (1979) 25 Cal.3d Court Supreme Pryor Municipal Court in “lewd and dissolute 599 P.2d construed Cal.Rptr. 636] *4 (a). Concerning
conduct” as contained in Penal Code section subdivision section, it held that in lewd and dissolute that engage (id., 244) at p. conduct a of certain requires touching parts body “lewd,” are synonymous and that the terms “dissolute” and “lascivious” (id., 248). the case can be from the Pryor distinguished at p. Although instant the in grounds, Pryor touching case a number of fact (a), was to commit misdemeanor section subdivision lewd required conduct in our determination that a is to commit weighs touching required
a felonious section 288 lewd act. The district at the section 995 that the contact attorney argued hearing
on the to the was a sufficient way orange grove touching. Respondent the takes v. Webb 158 Cal. opposite position, citing People Whether, claims, App.2d 141], respondent P.2d the act of M. while an knife and physically pushing holding open her compelling to travel some 60 to 70 feet to the is more innocent orange grove than Webb, the conduct the of defendant defendant’s arm supra, (putting (id., 542)) around the shoulder while at boy’s to a walking bungalow p.
is Austin questionable. According had declared at testimony, least a of his at portion lustful desires the church steps. By implication, he wanted the child’s privates exposed.
It bemay that Austin’s argued was not touching done with the intent to, of arousing, lust, appealing the gratifying passions or sexual desires M., of himself or of Miss but was done merely place the child in a more then, secluded area where he might with the required specific intent, However, physically contact her. Austin’s contact would be sufficient it was
providing done for the purpose of some immediate sexual touch[Oct. gratification. We can not as a say matter of law that his actual a determination concurrent sexual stimulation. Such was divorced from ing was the for trier fact. orchard, in the the occurred from Apart journey knowledge “‘It common pants. removing of the act
performance removing panties to conclude that experience and common necessarily would removing panties the hands of the one child outraged.’” of the child so undoubtably body come contact 213, 215 P.2d 61 Cal.App.2d v. Pollock (People (1934) 137 Cal.App. v. Lanham 328], quoting People Here, an with the enticement knife exposed coupled coercion 410].) was touch reward the minor caused to physically of monetary her own person. Touching Necessary Code Section to Violate Providing May Own on Its Person Be Done the Child Victim Instigation Touching Had of a Person Who Was
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419,
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v.
In v. People supra, children, in five instructing ages for his conduct of Roberts prosecution thirteen, with with themselves and in sexual activities engage eight have need not physical It held that Roberts himself one another. was to be as an aider and abettor. Under with child in order guilty contact rule, a law quoted the above common citing construction of cases idiot, do touching an child to who causes an or innocent person (26 aiding abetting. of and without to consideration principal regard 388.) Cal.App.3d p. or caused to to a child who is engage harm occur may
Significant seeking self-gratifi- of a sexual person to the lustful intendments submit acts is limited only harmful potentially cation. The range proscribed The harm be manifested may of the imagination perpetrator. child mental, ways, leaving different emotional and physical many fears. possible lasting debilitating intent section 288 requisite specific Three who each have persons the same harm to children. significant create may independently himself of a child. The person perform touching first could lewd second could cause an innocent third to do same person person type third could cause the child to do the same touching, type of itself. touching upon case,
In the instant Austin’s intent be inferred from particular may his conduct. He was for the and removal responsible touching child’s as if he had done it himself. No different pants surely specific intent would be had he removed the pants inferred himself. v. Hobbs
People Cal.App.2d 411] stated: “Section 288 of the Penal Code was enacted to children protect from the lustful advances and of callous and tamperings unscrupulous persons as well as from the assaults of depraved unfortunates. In all cases under arising this statute the purpose perpetrator
the child is the factor and each case is to be examined in controlling light Owen, the intent with which the act was In done. 620..., it is said ‘It that is not the accomplishment but the intent of the is the basis of the party commission of the acts act, although condemned in Code If section 288.’ intent of the innocence,
it arouse, have the outward may appearance of is to *6 to, lust, or or the the appeal gratify passion or the sexual desire of the statute, it stands if perpetrator condemned the or it is intended to by child, arouse feelings of or sexual desire in the it likewise stands passion condemned. The intent with which the act is done is manifested by the (Pen. Code, 21.) circumstances under it which was committed. As is § Owen, said in each case a lustful advance supra, involving a upon child ‘must be decided the evidence introduced and is not by (Italics controlled a decision.’” in necessarily by previous original.) the The same reason which of rule a compels application making Roberts, his principal liable for the acts of Cal. agents supra, App.3d of that rule the instant case. Children compels application have the to be free from lustful advances and of right tamperings proscription by That is persons. right recognized
callous and unscrupulous imposed section 288. two is count the information dismissing of the trial court of
Judgment and is further proceedings. reversed the case remanded for Hamlin, J.,* concurred. respectfully Acting
HOPPER, I dissent. P. J. should An Liminally, placed perspective. this case be proper affirmance of the trial here would not mean that the defendant judge Austin as the shows in this would free. Insofar record necessarily go case, Austin still face the additional kidnaping charge any would other than a of Penal Code section 288. Affirmance applicable violation charges violation of charge would mean of only particular Code 288 is No reasonable inapplicable. person disagrees the statement “children have the to be free majority right that from lustful advances and of callous and tamperings unscrupulous persons.” recognized children is a considerable duty protect However, number of in this not mean that statutes state. does a not court is to follow the law and determine whether or not obligated fall particular particular acts within confines of alleged charged. crime argument that,
I agree with the conclusion the majority contrary commit appellant, of the victim a necessary However, I violation of Penal Code section 288. reach that conclusion a somewhat different road than does the majority. at all times relevant hereto: provided “Any Penal Code section lewd or lascivious act who commit willfully lewdly shall for in acts other crimes Part including any constituting provided thereof, or with or member any part 1 of this code upon body, arousing, child of 14 with the intent of years, appealing under age *7 to, of such passions or the lust or or sexual desires or gratifying child, and shall be imprisoned of such shall be guilty felony (Italics added.) three, five term of four or prison years.” state for a *Assigned by Chairperson of Council. the Judicial briefs,
In their respondent asserts and concedes appellant that “upon” denotes actual contact. differ as physical They import “with.”1 Appellant that “with” argues should be interpreted proscribe lewd acts perpetrated use of the of the victim through body and not limited to acts Otherwise, which involve actual runs, contact. the argument inclusion
of the word “with” would be superfluous. A line of cases gives independent to “with” meaning by that a holding when, defendant violates intent, section 288 with the requisite lustful he touches the victim the victim’s through he clothing, although does not touch the (1945) victim’s naked v. Ash body. (People
583, 584 415]; (1934) 737, P.2d v. Lanham People 137 Cal.App. [161 (1925) P.2d 410]; Parker People Cal.App. 547-549 [31 P. 401]; v. Dabner Cal.App. 632-633 (1979 P. see also 975]; rev.).) CALJIC No. 10.30
In of the light independent of “with” in the significance context of an interpretation that section which requires an actual victim or (directly through medium of the victim’s does not render “with” clothing) superfluous.
The majority opinion holds that act of respondent’s M. in the pushing direction of the was a orange grove sufficient touching because he had “declared at least a portion of his lustful desires at the church steps. By implication, he wanted the child’s privates exposed.”
In the zealous quest bring respondent “justice,” majority makes opinion no effort to v. Webb distinguish People Cal.
App.2d Webb held that a defendant’s conviction of 141]. denoting 1 “With.A word of proximity, contiguity, (Black’s relation or association." (5th 1979) 1436.) Law Diet. p. ed. company to; of; opposition against.. a) alongside b) 1. in .2. near to in the “[W]ith... into; c) associate, among.. a) as companion, .3. an or of.. .4. a member of for, .b) under, to; working serving regard .. concerning.. etc... .5. in or relation .6. in as; to; well, etc., compared
the same terms completely, contrasted to.. .7. as as.. .8. of belief, of; opinion the same support etc. as.. .9. in opinion side of... 10. in the of; of; a) or estimation using.. ,b) of... 11. as the result because of... 12. means use, of; presence, a) by... by, etc. 13. accompanied by, attended circumstanced b) attribute, having accouterment, etc.; having possession, etc.... bearing, wearing, received... 14. as a owning... showing care, or exhibiting... 15. keeping, 16. in the to; a) of; ,b) including... etc. added notwithstanding... of.. in spite .17. and.. 18. 19. a) as; b) at the same c) time as... in the same degree direction as... in the same to; proportion ,d) in the following to.. course of.. .20. .21. upon; onto.. from.. .22. (Webster’s (2d 1972) 1623.) after....” New World Diet. ed. p.
118 section 288 could be based on an act of oral but not the copulation on act of arm he defendant’s his around the victim’s shoulder as placing (Id. him led into the where the oral occurred. at bungalow copulation 542.) p. (id., 542)—and
As makes clear at the p. majority opinion Webb obfuscates—lustful intent an innocuous plus touching preparatory ultimate lewd or lascivious act does not a section violation make.
(See Cal. proceeds also v. Jones People The to fails Webb and Rptr. 454].) majority opinion distinguish to hold that the evidence established that sufficiently pulling the pants, down her under victim touched herself respondent’s innocent I and a violation of Penal Code section 288 occurred. agent thus disagree. majority what
The the are consistent with the cited opinions majority the Civil section 2295 defines definition of Code ignores: agency. another, called the represents principal, dealings as “one who
“agent” transaction. cases with third persons.” Agency implies three-party defendant, three the the parties: relied the involved upon by majority the or otherwise—and victim. agent—“innocent” that a any authority holding
Research has not disclosed violates who Code second by acting through party section hats, v. Roberts two and “victim.”2 “agent” wears simultaneously 25], relied Cal.Rptr. 26 Cal.App.3d with There, aiding was charged defendant inapposite. majority, children, thirteen, Penal Code violate eight five abetting ages and The trial court set and with one another. section 288 themselves the defendant no evidence showed information because aside the Court of held reversing, Appeal the victims. In touched personally need not himself abetting and charged aiding that the defendant Penal Code section 288. with the victim to violate have contact physical applied approach to crime. 1 am my has the two-hat 2 Nocase called attention (D.C. 1939) Cir. 107 F.2d v. United States of the statement in Beausoliel aware girl little was both the victim says present “In the case this page where the court 297: which he was convicted.” appellant in the crime of agent innocent appellant by child charge. Actual That case involved an assault gives distinguishable instant case but only factually from the also is it place. took Not analysis legal no and makes supporting quoted the above statement no reasons “agency” issue. Corpus agent an see use of innocent of crimes For cases on commission Juris, Law, 84b, Secundum, Corpus Criminal page Criminal Juris
119 in Roberts the alternative framed on the information was Though himself, that a victim could violate section 288 theory opinion sparse; does not so even so hint. The factual is summary hold or are acts not described. alleged physical
Moreover, have that the defendant need not himself holding which contact with his victim—a I holding agree—the Roberts court relies cases which of them agents—none on “related” (Thus, the defendant. “innocent”—touched third behalf of parties one and to intercourse with an party aid abet a third have sexual may (1955) underage girl (People Haywood Cal.App.2d v. 131 259 [280 (1952) Lewis 461]) P.2d v. 113 468 P.2d People 180]; Cal.App.2d [248 (Matter and wife rape a husband aid and abet a third his may party (1914) Kantrowitz 1078].) 203 P. Application Cal.App. 24 [140 of of sum, leap In involves an opinion inappropriate quantum majority on which Roberts relies. beyond Roberts and the authorities (1952) P.2d v. Hobbs 109 189 People
Searching Cal.App.2d [240 is to and is for its direct instant case no avail 411], applicability as for Crater and as have been the searches to date unrewarding Judge Ambrose Bierce. Such conduct
In no do I of conduct. way respondent’s alleged make light outrage majority. I share the moral reprehensible suggests Nevertheless, opinion leitmotiv of the majority seeming should not blind us to “we can’t let him this” get away 108, Law, (4th England ed. pages Halsbury’s See also 11 Laws section 124-125. Law, 43, 34-35; (2d ed. 1976) 1969) pages Perkins on Criminal Law paragraph Criminal Law, Wilkin, 63, 496, 657, Scott, page LaFave Criminal section page & 47, (1963) pursuant to Penal pages In California California Crimes 49-50. 31,“... counseling, encouraging under the persons advising or children all Code section age any principals crime.. .are years, or idiots commit of fourteen lunatics (1973) Cal.App.3d Taylor 30 People cases include: v. crime so committed.” California (1970) (false Cal.App. 5 Superior v. Court Cal.Rptr. pretenses); 117 Smith 216] [106 agent); (false of Blue Shield as Cal.Rptr. 3d People claims to state means 260 [85 208] prescription 446, (1965) Cal.Rptr. (forgery of Cal.App.2d 456 v. Jack 233 566] [43 (1959) agent); People v. 168 the innocent Pounds pharmacist with the People forged through agent); P.2d check innocent Cal.App.2d (passing 756 [336 219] (theft v. newsprint); People (1952) v. 114 399 P.2d Waxman [250 339] 440, (fictitious checks insane (1933) passed Cal.App. 447 Monks innocent [24 508] (theft (1930) Cal.App. P. agent); People v. Leach 31] P. securities); Cal.App. 378-379 corporate People 451] v. Smith (embezzlement). Cal.App. P. (burglary); and Keller 585] agent. anyone both victim and innocent In none of these cases was fact that we are here In statute. so we should not construing doing, *10 succumb to a totalitarian punishment by analogy thinking. Principles fundamental under law are As the lead any government involved.
opinion of this in court v. Moreland said,
16-17 a Cal.Rptr. 118], different statute: construing “... we know that citizens must beware which claims in government public interest the power to those who do acts imprison deemed to be even deserving punishment, the statute under which the though prosecution is does not such brought clearly proscribe conduct.”3 within Penal to fit conduct majority’s straining respondent’s previously Code section 288 unsound but As unnecessary. is not only legally indicated, aside, remains Penal Code respondent and quite while armed charged kidnaping deadly weapon would be to other offenses such as Penal Code section possibly subject (indecent Penal Code section 272 exposure), (contributing (child minor) Code section 647a delinquency molesting) and Penal (1979 (which (see does not CALJIC No. 16.441 require touching rev.)). stated, be, crime this Penal Code section 288 violation may Simply
it is not.
The trial the motion judge properly granted to dismiss count II.
I would affirm. for a Respondent’s petition Court was denied hearing by Supreme Bird, J., Mosk, J., Newman, J., December 1980. C. were of the that the should be opinion petition granted. frightening examples Germany of Nazi and Soviet set 3 Seethe Russia forth in footnote page 17. 3 of Moreland “Every provides part: willfully lewdly... 4 PenalCode section 314 who Procures, counsels, any person expose part any
2. or assists so to himself or take exhibition, view, any public model artist or make other exhibition himself to or persons, decency, the view of such as is adapted number of offensive to or is to incite thoughts guilty of a to vicious or lewd acts misdemeanor.”