People v. Martinez, No. S042933

• Court: United States State Supreme Court (California)
• Writing for the Court: BAXTER; LUCAS; MOSK
• Citation: 903 P.2d 1037,45 Cal.Rptr.2d 905,11 Cal.4th 434
• Parties: , 903 P.2d 1037, 95 Cal. Daily Op. Serv. 8537, 95 Daily Journal D.A.R. 14,727 The PEOPLE, Plaintiff and Respondent, v. Pablo Cruz MARTINEZ, Defendant and Appellant.
• Decision Date: 02 November 1995
• Docket Number: No. S042933

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45 Cal.Rptr.2d 905 11 Cal.4th 434, 903 P.2d 1037, 95 Cal. Daily Op. Serv. 8537, 95 Daily Journal D.A.R. 14,727 The PEOPLE, Plaintiff and Respondent,
v.
Pablo Cruz MARTINEZ, Defendant and Appellant. No. S042933. Supreme Court of California. Nov. 2, 1995.

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[11 Cal.4th 437] [903 P.2d 1038] Maureen DeMaio, Santa Barbara, under appointment by the Supreme Court, and Maxine Weksler, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, [11 Cal.4th 438] John R. Gorey, Sanjay T. Kumar and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, Justice.

We granted review for the limited purpose of determining the acts necessary to sustain a conviction under Penal Code section 288. ¹ This statute imposes criminal liability on anyone who "willfully and lewdly commits any lewd or lascivious act" upon the body of a child under the age of 14 "with the intent of arousing ... the lust, passions, or sexual desires" of either party. (Id., subd. (a).)

For almost a century, section 288 has been interpreted to require no particular form of physical contact. The courts have established in a long unbroken line of cases that the crime occurs whenever the trier of fact determines, based on all the circumstances, that an underage child was "touched" with the requisite sexual intent. A construction permitting conviction for any and all sexually motivated contact is supported by the relevant statutory language and surrounding scheme, and apparently has been accepted by the Legislature.

At defendant's urging, the Court of Appeal rejected this long-standing approach. The court concluded that because section 288 literally requires both sexual motivation and a "lewd or lascivious act " it cannot be violated simply by any touching with sexual intent. (Id., subd. (a), italics added.) In other words, no statutory violation occurs under this view unless the act is both sexually motivated and "lewd." Similar reasoning first appeared in People v. Wallace (1992) 11 Cal.App.4th 568, 574-580, 14 Cal.Rptr.2d 67 (Wallace ), and has been followed to a greater or lesser extent in several other recent Court of Appeal decisions.

As we explain, this new minority view does not withstand scrutiny. Whether a particular touching is "lewd" and criminal under section 288 cannot be determined separate and apart from the actor's intent. The nature or form of the act circumstantially bears on this determination but has not otherwise been restricted by the Legislature. To the extent the minority cases can be understood to exempt certain sexually motivated touchings from the definition of a "lewd or lascivious act," they are also inconsistent with the basic purpose of the statute as identified in prior decisions of this court. We therefore conclude that the Court of Appeal erred insofar as it departed from the traditional construction of the statute and reversed one of two lewd conduct convictions entered against defendant at trial.

11 Cal.4th 439

I. FACTS

This case concerns separate assaults upon two 13-year-old girls. Both crimes occurred between 7:30 and 8:30 p.m. on June 21, 1992, in the same residential neighborhood in Newhall.

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The first victim, Christina L., began walking from the junior high school to a girlfriend's house when she heard footsteps behind her. She turned around and saw defendant,[903 P.2d 1039] a stranger, standing a few feet away. Defendant asked for the time and she responded.

As Christina turned to leave, defendant lunged towards her, placed his arms around her waist, and pressed her body against his. Christina became frightened, and started to struggle and scream. Defendant twice said, "sh, it's okay," in an apparent attempt to calm her. He then tilted his head, stuck out his tongue, and tried unsuccessfully to kiss her on the lips. Christina testified that defendant "hugged" her for about 20 seconds, and that she continuously tried to break free of his grasp.

At some point, defendant let go of Christina's waist and grabbed her tightly by the wrists behind her back. She kicked and yelled, and eventually attracted the attention of the Perezes, a couple standing outside their house across the street. The Perezes ordered defendant to release Christina and he complied. Christina ran towards the Perezes and waited in their house for the police and her parents to arrive. Defendant loitered outside the Perez home for a few minutes, but he left on foot when Mr. Perez confronted him about the crime and indicated that the police would arrive soon.

The second incident occurred a short time later in a public park about one block from the junior high school. The victim, Magali J., was playing with her cousins in the vicinity of her parents and uncle. When one of the cousins began to yell, Magali's mother looked up and saw defendant standing with his back facing her, holding Magali in front of him. Defendant's right arm was wrapped around Magali's neck or shoulder area, and his left hand covered her mouth. Mrs. J. testified that defendant continued to "hug" Magali as he pushed her a substantial distance toward the perimeter of the park. Magali appeared to be struggling with defendant.

Mrs. J. immediately alerted other family members and ran to help her daughter. Defendant responded by releasing Magali and by punching Mrs. J.--who was nine months pregnant--in the face. Defendant then tried to flee, but he was tackled and restrained by Magali's father and uncle. The police were called and soon arrived. Meanwhile, Christina and Mr. Perez were [11 Cal.4th 440] driven to the park in another patrol car. They identified defendant as Christina's attacker, and he was arrested for both crimes.

Shortly after defendant's arrest and while still very upset, Magali told her mother that defendant had "touched" or "grabbed" her "chest" during the incident. Magali demonstrated the gesture at trial. According to the prosecutor, "she indicated with her right hand her chest area." ²

Defendant was charged with committing a forcible lewd act under section 288, subdivision (b), against Christina and Magali in counts 1 and 2, respectively. He was also charged with the attempted kidnapping of Magali and with misdemeanor battery based on his conduct towards Magali's mother, Mrs. J.

As far as we can discern from the limited record, defendant argued at various times in the trial court that no lewd conduct had occurred within the meaning of section 288. The claim was raised in a motion to dismiss the charges before trial, in a request for acquittal made at the close of the prosecution's case, and before jury instructions were given. On such occasions, defendant cited the lack of any evidence that he had kissed Christina or touched the breasts of either girl. Defendant theorized that, at most, he was guilty of attempted child molestation. ³

The trial court rejected any suggestion that a completed violation of section 288 requires conduct more intimate than the acts described by the victims, or that the evidence otherwise failed to support the lewd conduct counts charged in the information. The

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court therefore denied defendant's various requests to dismiss, reduce, or acquit him of [903 P.2d 1040] the lewd conduct charges on this ground, or to instruct on attempted commission of the crime.

In submitting the case to the jury, the trial court gave the standard instruction for lewd conduct by means of force or fear under section 288, subdivision (b). It also instructed on the lesser included offense of lewd conduct under section 288, subdivision (a). Both instructions describe a lewd or lascivious act as "any touching" of the victim committed "with the [requisite] specific intent." (CALJIC Nos. 10.41, 10.42 (5th ed. 1988).) ⁴ In addition, the jury received standard instructions defining specific intent, [11 Cal.4th 441] allowing such intent to be inferred from the circumstances surrounding the charged act, and requiring a union of act and intent as a condition of conviction under section 288.

The jury found defendant guilty as charged. The court imposed the middle term of six years for each count of forcible lewd conduct under section 288, subdivision (b), and ordered that full consecutive terms be served. (§ 667.6, subd. (d).) The court imposed but stayed sentence on the attempted kidnapping count under section 654, and ordered that the sentence for misdemeanor battery run concurrently with the prison sentence. Thus, defendant received a term of imprisonment totaling 12 years.

On appeal, defendant renewed his attack on the lewd conduct counts. He relied upon Wallace, supra, 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67, which was decided a few months after the verdict in this case. Wallace basically held that the standard jury instructions are flawed because they define the requisite act in terms of "any" touching instead of a "lewd and sexual" touching. (Id., at p. 571, 14 Cal.Rptr.2d 67.) Defendant challenged the instructions given at his trial on this ground. Defendant also argued that even assuming he intended sexual arousal, there was no evidence he touched either victim in an inherently "sexual" manner as required by Wallace.

Except as otherwise indicated below, the Court of Appeal followed Wallace. The court determined that the jury was misled to believe that no particular type of touching was required and that defendant's federal due process rights were violated as a result. The court concluded that the instructional error was harmless as to count 1, because defendant embraced and tried to kiss Christina in a "clearly sexual manner." However, the alleged error was deemed prejudicial as to count 2. The court observed that the record did not disclose whether defendant had touched Magali's breasts or simply her "chest." Because...