People v. Levesque, A065936

• Citation: 35 Cal.App.4th 530,41 Cal.Rptr.2d 439
• Decision Date: 30 May 1995
• Docket Number: No. A065936,A065936
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph LEVESQUE, Defendant and Appellant.

Page 439

41 Cal.Rptr.2d 439

35 Cal.App.4th 530

The PEOPLE, Plaintiff and Respondent, v. Joseph LEVESQUE, Defendant and Appellant.

No. A065936.

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

May 30, 1995.

Certified for Partial Publication ^*

As Modified on Denial of Rehearing June 29, 1995.

Robert J. Beles, Paul McCarthy, Oakland, for 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., Clifford K. Thompson, Deputy Atty. Gen., San Francisco, for respondent.

STEIN, Associate Justice.

Joseph Levesque appeals his convictions of violating Penal Code section 288, subdivision (a), ¹ (count one) and section 647.6 (count two). The court also found true allegations of a prior section 288, subdivision (a) conviction and prior felony convictions for rape and burglary. Pursuant to section 667.51, subdivision (d) the court sentenced appellant to imprisonment for 15 years to life for the section 288, subdivision (a) violation, and a consecutive term of 16 months (one third the middle term) for the section 647.6 violation.

FACTS

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 While J.J. was taking his turn with the video camera, appellant called to get J.J.'s attention. When J.J. turned the camera towards appellant he saw that appellant had pulled down his pants and underwear and was displaying his bare buttocks. J.J. described it as "mooning." A few seconds later appellant called for J.J.'s attention again. This time appellant had Kerlett over his knees, and her pants were down displaying her bare buttocks. Rosalia saw appellant place Kerlett over his knees and pull down Kerlett's pants. Kerlett also testified that appellant "grabbed me and put me over his legs and took down my pants." When J.J. saw this he put down the camera, and told both girls to come with him. Kerlett jumped up and pulled her pants up, and they went outside. J.J. said to appellant "take us home or we're going to walk." On the way home in the car appellant warned the children not to say anything to their parents or they wouldn't be allowed to visit again.

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 got 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.

ANALYSIS

I. Definition of a Lewd Act

Appellant first contends that the trial court gave erroneous instructions on the definition of a lewd act. Prior to 1993, CALJIC No. 10.41 defined a lewd act 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." This definition was based on a long line of cases holding that "any touching" of the child's body may constitute a lewd act within the meaning of section 288, subdivision (a), if it is done with lewd intent. (See, e.g., People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380, 7 Cal.Rptr.2d 660; People v. Pitts (1990) 223 Cal.App.3d 606, 889, 273 Cal.Rptr. 757; People v. Dontanville (1970) 10 Cal.App.3d 783, 795-796, 89 Cal.Rptr. 172.)

In People v. Wallace, 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67 (1992), 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, 14 Cal.Rptr.2d 67.) 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, 14 Cal.Rptr.2d 67, original emphasis.)

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, 14 Cal.Rptr.2d 67. 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. ]" 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."

                (CALJIC No. 10.41 (1993 rev.) italics added.) 2  The comments to the 1993 revision state:  "[The] 1993 revision is prompted by the case of People v. Wallace (1992) [11 Cal.App.4th 568].  Traditionally, the definition of a lewd act has been touching, innocuous or not, coupled with a specific intent.  The Wallace court has posited a different definition, requiring that the act be by itself lewd.  The trial court will have to choose which definition is appropriate."
                

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 touching" with the requisite specific intent. He contends that the traditional definition of a lewd act is erroneous, and that instead the court should have given only the more restrictive definition proposed by Wallace, and incorporated in the 1993 CALJIC revision.

There is a substantial split of authority concerning the correct definition of a lewd act. (See, e.g., People v. Filson (1994) 22 Cal.App.4th 1841, 28 Cal.Rptr.2d 335 [court reversed conviction on other grounds and remanded with instruction to use the Wallace definition on retrial]; People v. Sharp, 29 Cal.App.4th 1772, 36 Cal.Rptr.2d 117 (1994) [agrees that the pre-Wallace definition could be read as "conflating these two elements (i.e., lewd act and specific intent) but criticizes the Wallace definition as too restrictive]; People v. Castro (1994) 30 Cal.App.4th 390, 35 Cal.Rptr.2d 839 [Pre-Wallace definition of a lewd act is incorrect, but the revision based on Wallace is also misleading because of the reference to "an objectively reasonable person"]; People v. Marquez (1994) 28 Cal.App.4th 1315, 33 Cal.Rptr.2d 821 [pre-Wallace definition of a lewd act is "any touching" with the requisite intent is correct].)

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.] [p] 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...