People v. Wallace

• Decision Date: 04 December 1992
• Docket Number: No. F015756,F015756
• Citation: 11 Cal.App.4th 568,14 Cal.Rptr.2d 67
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Alan WALLACE, Defendant and Appellant.

Page 67

14 Cal.Rptr.2d 67

11 Cal.App.4th 568

The PEOPLE, Plaintiff and Respondent, v. John Alan WALLACE, Defendant and Appellant.

No. F015756.

Court of Appeal, Fifth District, California.

Dec. 4, 1992.

[11 Cal.App.4th 570] Donald I. Segerstrom, Jr., Sonora, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Asst. Atty. Gen., Michael Weinberger and W. Scott Thorpe, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

FRANSON, Associate Justice, Assigned. ^*

Defendant John Alan Wallace appeals from the judgment of convictions following To resolve these issues, this court must decide whether section 288 proscribes any touching (upon the body of a minor) plus the requisite specific intent, or a lewd or lascivious touching with the requisite specific intent. As we shall explain, contrary to dicta in several reported cases, we hold a defendant must touch the victim either directly or indirectly in a lewd or lascivious manner to violate the statute. Further we hold the touching must involve a sexual act. Thus, an innocuous or innocent touching even with the required intent will not suffice.

                his jury trial on charges of violating:  PENAL CODE  SECTION 2881, subdivision (c), a lewd and lascivious act upon a minor by a person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the child, a felony (Cts. I & II);  section 311.4, subdivision (c), inducing a minor to engage in preparing a film involving sexual conduct, a felony (Ct. III);  and section 647.6, annoying or molesting of children under the age of 18, a misdemeanor (Ct. V). 2  The case arises out of defendant's attempt to persuade two 15-year-old girls to do a striptease while he videotaped them.  Defendant's appeal relates primarily to questions of whether the girls' conduct as depicted on the videotape constituted lewd or lascivious acts for purposes of section 288 and whether the jury instructions correctly defined the crimes charged
                

Although the evidence in this case was close, it did support a rational inference that appellant touched the victims in a lewd and sexual manner. Nevertheless, the jury instructions on the essential elements of the crime (CALJIC NO. 10.42.5 (5th ed. 1989)) were erroneous in that they defined the crime as "any touching" of the body of the child with the required specific intent. There was no instruction that the touching itself had to be lewd or lascivious and sexual. Further, the prosecutor misled the jury by telling them "any touching," innocuous or otherwise, would suffice to violate the statute, provided the defendant had the requisite specific intent at the time of the touching. We hold the instructional error was prejudicial as to Counts I and II.

We also hold the instructional error in the definition of a lewd or lascivious act under section 288, subdivision (c) tainted the instruction given to the jury on the alleged violation of section 311.4, subdivision (c). This latter statute prohibits inducing a minor to pose or model in the preparation of a film involving "sexual conduct" which, among other things, means "any lewd or lascivious sexual act as defined in Section 288." ( § 311.4, subd. (c) & (d).) Because neither section 288 nor the instructions given defined the term "lewd or lascivious sexual act" and because the instructions given were misleading as noted above, the conviction on Count III also must be reversed.

Finally, in the absence of any attack on the misdemeanor conviction ( § 647.6), we affirm Count V.

STATEMENT OF FACTS

One afternoon in July of 1990, five teenage acquaintances of defendant stopped by his home on their way to a waterslide park. There were three boys and two girls; the girls, Tina B. and Jenny H. were both fifteen years old. Defendant was 39 years old at the time. The teenagers purportedly went to defendant's home to use his washer and dryer. While they were in his home, defendant filmed the girls on videotape.

The videotape (Exh. 22) depicts the following. It begins as Tina takes off her top in a seductive manner. A man (later identified as defendant) says "Are we loving this or what?" She then takes off her pants, leaving herself dressed in a bikini. She shows her tanlines and slaps her buttocks. At this point, she pulls up on Jenny's tank top revealing her midriff. Next, one of the boys appears and tries to pull down Tina's Defendant is then heard to say: "Are we loving this? Jenny, take everything off! Do I get a better show? Go ahead and play a trick on her [Jenny]. Is there going to be a better show?"

bikini top. Tina shows her tanlines once again for the camera.

In turn, one of the boys pulls down Tina's bikini top to reveal her breasts and Tina does the same to herself. Then, defendant calls out: "Jenny, you're next. You don't have to pull it down, just pull it [her tank top] up." Jenny and Tina only go so far as to pull at their bikinis to show their tanlines. They then kiss the camera and the videotape stops briefly.

At this time, the teenagers left defendant's home for the waterslide park. They returned later however and defendant began to record the girls with his videocamera once more.

This portion of the videotape begins with the girls brushing their hair. They then take off their tank tops, swing them around and slowly remove their shorts as though they were doing a strip tease. The girls are still clothed in their bikinis. Defendant says "This is wonderful!" Tina bounces up and down so that her bikini top moves; she refers to her breasts as "bouncing babies."

Defendant then says to Jenny "Take some of that butt off!" He later corrects himself, explaining he meant to say take some of "the clothes" off. Jenny responds by starting to pull down on the rear portion of her underpants.

Next, one of the boys grabs one of Tina's breasts in his hand and jostles it. Tina then bends down to stick out her buttocks to one of the boys. When one of them tries to pull at Tina's bikini bottom, she immediately stands upright. Meanwhile, defendant twice says to the girls: "Get some clothes on and do a strip."

The girls are next seen in a laundry room pulling clothes out from a dryer. After this, Tina appears in another room. She bends over to take off her bikini bottom and put on some underpants. She does so in such a way that the viewer cannot see her lower torso or buttocks. Defendant twice says during this sequence "That is slick." Then Tina shows off for the camera the writing "Tina N Casey" on the back of her underpants. She finishes dressing and then looks at her hair in a mirror.

After this, one of the boys starts to slowly undress Tina. Defendant says "Bend over so I can see that [the 'Tina N Casey' writing on the girl's underpants]." Tina remains in her underwear however.

One of the boys then helps undress Jenny down to her underwear. Defendant responds by saying: "You get to bend over, Jenny." She bends over so that her backside is facing the camera. Defendant remarked "That's good. You didn't have an ass on you like that when you were eight years old."

At this point, the girls put on their street clothes. Then Tina appears to take off a bra while her back is to the camera. Defendant tells her to "Just turn sideways" to the camera. She does so as she finishes taking off the bra. Defendant responds "Oh, yeah, that was a good shot." The videotape ends as the girls once again approach the camera lens and kiss it. Throughout the videotape, defendant frequently focuses the camera on the girls' buttocks and breasts. The entire tape lasts approximately 12 minutes.

Substantial evidence was presented to show that when defendant encouraged the teenagers' conduct and filmed them, he did so with the specific intent of "arousing, appealing to or gratifying [his] lust or passions or sexual desires" ( § 288) and the intent to sexually stimulate the viewer ( § 311.4, subd. (b)). The jury's implied finding against defendant on this issue is not challenged on appeal.

DISCUSSION

I. TOUCHING REQUIRED FOR VIOLATION OF SECTION 288.

Section 288 provides in relevant part:

"(a) Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or 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 that person or of the child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.

"...

"(c) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and the defendant is at least 10 years older than the child, shall be guilty of a public offense and shall be imprisoned in the state prison for one, two, or three years, or by imprisonment in the county jail for not more than one year." (Emphasis added.)

A lewd act for purposes of section 288 requires a touching. (People v. Austin (1980) 111 Cal.App.3d 110, 113, 168 Cal.Rptr. 401.) However, the necessary touching may be done by the child victim or by a third party on the child's own person at the instigation of the defendant. (Id. at pp. 114-119, 168 Cal.Rptr. 401.) Further, as this court explained in People v. Pitts (1990) 223 Cal.App.3d 606, 887, 273 Cal.Rptr. 757, a lewd or lascivious act is one which is sexually unchaste or licentious, suggestive of or tending to moral looseness, inciting to sensual desire or imagination, inclined to lechery, or tending to arouse sexual desire.

The video-film shows innumerable "touchings" of the girls' bodies by both the girls and their boyfriends that were not themselves lewd or lascivious. Nevertheless, there was credible evidence from which the jury...