People v. Gaglione, A060985

• Decision Date: 21 July 1994
• Docket Number: No. A060985,A060985
• Citation: 32 Cal.Rptr.2d 169,26 Cal.App.4th 1291
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gennaro William GAGLIONE, Defendant and Appellant.

Page 169

32 Cal.Rptr.2d 169

26 Cal.App.4th 1291

PEOPLE of the State of California, Plaintiff and Respondent, v. Gennaro William GAGLIONE, Defendant and Appellant.

No. A060985.

Court of Appeal, First District, Division 1, California.

July 21, 1994.

Certified for Partial Publication. ^*

Rehearing Denied Aug. 22, 1994.

Review Denied Oct. 27, 1994.

Melissa W. Johnson, Atty. at Law, San Francisco, under appointment by the Court of Appeal, for defendant/appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald E. Niver, Supervising Deputy Atty. Gen., Bruce Ortega, Deputy Atty. Gen., San Francisco, for plaintiff/respondent.

DOSSEE, Associate Judge.

Defendant was convicted in a jury trial of committing a lewd act upon a child under 14 (Pen.Code, § 288, subd. (a)). The jury also found defendant was a stranger to the victim so as to make him ineligible for probation (Pen.Code, § 1203.066, subd. (a)(3)).

In a bifurcated proceeding the trial court found the allegations of prior convictions to be true so as to make defendant ineligible for probation (Pen.Code, §§ 1203, subd. (e)(5), 1203.066, subd. (a)(5)) and to subject him to a mandatory 15-to-life sentence (Pen.Code, § 667.51, subd. (d)).

Defendant was sentenced to prison for 15 years to life and was ordered to pay a restitution fine of $10,000. He appeals.

FACTS

On April 29, 1992, five-year-old Angela F. was playing outside the apartment of her babysitter, Barbara Buzzard, when a man approached her and asked her if she would like to earn some money by helping him pick up some "green things." He then led Angela into a nearby closet containing the utility meters for the apartment complex. The man closed the door, leaving it only slightly ajar, and then told Angela to touch him--first on his shoulder and then between his legs. Angela did so.

Meanwhile, Ms. Buzzard's three-year-old child had reported to her mother that Angela had gone with a man to get Ninja Turtles. Ms. Buzzard then followed the child to the utility closet. When she opened the door she found Angela on her knees picking up green tabs from the meters. A man was standing in the closet, too. He said, "She [is] helping [me]." He was dressed in a short-sleeved plaid shirt and tie and had a briefcase. She assumed he was the meter reader. He did not seem flustered or surprised, nor did he seem to be trying to compose himself. Angela did not seem disturbed. Ms. Buzzard did not believe anything was wrong. Nevertheless, after ushering the children into the apartment she watched the man get into a small tan hatchback car and drive off. She thought it odd that his car had been parked in the stall assigned to Angela's parents.

Defendant's car is a beige Ford Escort. Ms. Buzzard testified that the car she had seen looked similar to a photograph of defendant's car. Ms. Buzzard described the man to police as having short, sandy-blond hair and glasses. A few days later she selected defendant's photograph from a photographic lineup. She also identified defendant at trial.

Defense

Defendant presented no evidence. ¹ Defense counsel primarily argued to the jury that Ms. Buzzard's identification of him as the perpetrator was mistaken. He also argued that Angela's testimony should be discounted because children are suggestible.

I. Lewd Act

Penal Code section 288, subdivision (a), makes punishable "any lewd or lascivious act ... upon or with the body, or any part of member thereof, 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 [the perpetrator] or of the child...."

The jury was instructed pursuant to CALJIC No. 10.41 that "[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...." ²

In addition, at the request of the prosecutor, the jury was instructed: "Where a person instructs a child under the age of 14 to touch such person, and that person has the specific intent to arouse, appeal to or gratify the sexual desires of either party, such person may be guilty of a lewd or lascivious act in violation of section 288a. No touching of the person--child by the person is required."

Defendant raises two claims of error pertaining to these instructions.

A. Any Touching

Defendant first argues that CALJIC No. 10.41 is an erroneous statement of the law; that an innocuous touching, such as Angela's touching of defendant's shoulder, will not suffice for purposes of section 288, even with the requisite specific intent. The argument has merit.

It has long been held that a "lewd or lascivious act" within the meaning of section 288 is not confined to genital touching. (People v. O'Connor (1992) 8 Cal.App.4th 941, 947, 10 Cal.Rptr.2d 530; People v. Dontanville (1970) 10 Cal.App.3d 783, 795-796, 89 Cal.Rptr. 172; People v. Ash (1945) 70 Cal.App.2d 583, 584, 161 P.2d 415.) Nevertheless, the touching must be lewd. In People v. Webb (1958) 158 Cal.App.2d 537, 323 P.2d 141, the defendant, the school custodian, put his arm on the victim's shoulder and led him to a bungalow, where he forced the child to commit oral copulation. The court held that the act of placing his arm on the child's shoulder did not qualify as a lewd act: "Regardless of any intent which defendant might have had when he put his arm around the shoulder of the boy on their way to the bungalow, that act does not come within the meaning of 'lewd' or 'lascivious.' Placing one's arm around the shoulder of a boy under the circumstances present in this case cannot be said to be lustful, immoral, seductive or degrading.... It is inconceivable that any court would convict a man of a violation of section 288 upon the mere proof of an act such as this." (Id. at p. 542, 323 P.2d 141.) (Hence the court held the only lewd act was the oral copulation and the defendant could not be separately punished under both section 288 and section 288a.)

More recently, in People v. Wallace (1992) 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67, the court directly addressed the language of the CALJIC instruction. The court repudiated dicta in several previous cases that any touching, even innocuous touching, if coupled with the requisite intent, is sufficient to constitute a lewd or lascivious act. Instead, the court held the touching must be a sexual act. "Section 288 mandates the commission of a lewd or lascivious act upon or with the body of the victim, separate and apart from the intent of the perpetrator. If this were not the law a defendant could be convicted for his or her thoughts, regardless of his or her deeds." (11 Cal.App.4th at pp. 578-579, 14 Cal.Rptr.2d 67.)

Accordingly, the court held the CALJIC definition of a lewd or lascivious act to be erroneous. The Wallace court suggested that "lewd or lascivious act" be defined as " 'any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire.' " (11 Cal.App.4th at p. 579, 14 Cal.Rptr.2d 67.) The Wallace court reasoned: "The application of an objective standard to determine the commission of a lewd or lascivious sexual act is consistent with ... the general principle that a mere intention of the accused to commit a crime or his belief that he is committing a crime, does not give rise to criminal liability. Apart from the mens rea, there must be some act or conduct in violation of law which itself is socially harmful. [Citations.]" (Id., at pp. 579-580, 14 Cal.Rptr.2d 67.)

Because the victims in Wallace were 15, the applicable statute was Penal Code section 288, subdivision (c), and the jury instruction given in that case was CALJIC No. 10.42.5 which contains language identical to CALJIC No. 10.41 that "any touching" qualifies as a lewd or lascivious act. In People v. Self (1993) 12 Cal.App.4th 1222, 1226, 16 Cal.Rptr.2d 67, the court found the reasoning of Wallace to be sound and held CALJIC No. 10.41 to be equally erroneous. "[CALJIC No. 10.41] improperly defined a lewd or lascivious act as 'any touching' with the required intent, and [it] did not provide adequate guidance for determining whether a touching constituted a violation of section 288, subdivision (a)...." ³ (See also People v. Filson (1994) 22 Cal.App.4th 1841, 1852, 28 Cal.Rptr.2d 335.)

Based on the authority of Wallace and Self, we conclude that CALJIC No. 10.41 given in the present case was erroneous. Because the error eliminated an essential element of the crime charged, the error must be evaluated under the Chapman "beyond a reasonable doubt" standard. (People v. Self, supra, 12 Cal.App.4th at pp. 1226-1277, 16 Cal.Rptr.2d 67; People v. Wallace, supra, 11 Cal.App.4th at p. 580, 14 Cal.Rptr.2d 67.) We conclude the error here was harmless beyond a reasonable doubt.

Although the victim testified to two acts of touching--one on the shoulder and one on the genitals--the district attorney in both her opening statement and closing argument relied exclusively upon the latter as the lewd act forming the basis for the criminal charge. The district attorney made no suggestion that the touch on the shoulder was sufficient. The case therefore stands in contrast to People v. Wallace, supra, 11 Cal.App.4th at p. 580, 14 Cal.Rptr.2d 67, where the district attorney argued that any touching however innocuous, such as brushing a child's hair or touching a child's arm, would satisfy the statute. Here, there was nothing in the prosecution's argument to mislead the jury as to what constituted the lewd act.

Moreover, defendant primarily relied upon the defense of mistaken identity. He did not argue the conduct was innocuous or noncriminal. Secondarily, defendant argued that Angela's testimony should not be believed and thus that there was inadequate proof that anything happened in the closet. But even in making this argument defense counsel acknowledged that the...