Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03580
BLEASE , Acting P. J.
A jury convicted defendant Allen Ray White of 15 counts of lewd and lascivious acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a); undesignated section references are to this code), nine counts of oral copulation of a child under the age of 14 years (§ 288a, subd. (c)(1)), and six counts of unlawful sexual intercourse with a minor (§ 261.5, subd. (d)). All counts involved the same victim. The court sentenced defendant to state prison for an aggregate term of 58 years.
On appeal, defendant contends the trial court erroneously instructed the jury on the offense of lewd and lascivious acts (CALCRIM No. 1110) and erroneously denied his request for an instruction on the absence of flight. We find no error and will affirm the judgment. We need not recount the facts underlying the offenses since they are not relevant to the issues raised on appeal.
I
Defendant contends CALCRIM No. 1110, the instruction on the offense of lewd and lascivious acts, is defective in that it “expressly tells the jury that the act need not be done in the very manner in which the statute requires that act to be done, namely ‘lewdly.’” We reject defendant’s claim.
Section 288, subdivision (a), provides:
“Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.”
The trial court instructed the jury in the language of CALCRIM No. 1110 as follows:
“The defendant is charged in Counts One through Seven, Nine, 11, 13, 15, 17, 19, 21 and 23 with committing a lewd or lascivious act on a child under the age of fourteen years, in violation of Penal Code Section 288[, subdivision] (a).
“In order to prove the defendant guilty of this crime, the People must prove that, Number One, the defendant willfully touched any part of a child’s body, either on the bare skin or through the clothing, Number Two, the defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of himself or the child, and Number Three, the child was under the age of fourteen years at the time of the act.
“The touching need not be done in a lewd or sexual manner. Someone commits an act willfully when he does it willingly or on purpose.
“It is not required that he intend to break the law, hurt someone else or gain any advantage.
“Actually arousing, appealing to or gratifying the lust, passions or sexual desires of the perpetrator or the child is not required. It is not a defense that the child may have consented to the act.” (Italics added.)
Defendant argues the italicized language in the foregoing instruction negates and removes an element of the offense from the jury’s consideration and thus lessens the prosecution’s burden of proof, violating his constitutional rights to due process, a jury trial and proof beyond a reasonable doubt. He claims the statute requires that a defendant lewdly commit the act; a jury told that the act need not be done in a lewd manner removes that element. Although he recognizes that the jury was instructed that the prosecutor must prove three elements, he argues that the jury was given conflicting guidance at best on the elements of the offense.
Defendant misinterprets the instruction. The touching of a child under 14 years of age with the required intent are the elements of the offense. The challenged italicized language means that touching of bare skin or certain parts of the body is not required and that the touching need not be sexual in nature. “Section 288, subdivision (a), requires a touching, even one innocuous or inoffensive on its face, done with lewd intent.” (People v. Lopez (1998) 19 Cal.4th 282, 290, original italics.) For example, a hug of a child under 14 years of age that appears innocent may be a violation if done with the requisite intent. (Id. at pp. 290-291.)
“[T]he courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the ‘gist’ of the offense has always been the defendant’s intent to sexually exploit a child, not the nature of the offending act. [Citation.] ‘[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done.... If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse... the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute....’ [Citation.] (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez), italics added by Martinez.)
“Thus, throughout the statute’s history, the cases have made clear that a ‘touching’ of the victim is required, and that sexual gratification must be presently intended at the time such ‘touching’ occurs. [Citations.] However, the form, manner, or nature of the offending act is not otherwise restricted. Conviction under the statute has never depended upon contact with the bare skin or ‘private parts’ of the defendant or the victim. [Citations.] Stated differently, a lewd or lascivious act can occur through the victim’s clothing and can involve ‘any part’ of the victim’s body. [Citations.]” (Martinez, supra, 11 Cal.4th at p. 444, italics added.)
“More recent authorities apply the same principles but tend to articulate them in more succinct terms. Like the jury instructions given in this case, modern courts state or imply that any touching of an underage child is ‘lewd or lascivious’ within the meaning of section 288 where it is committed for the purpose of sexual arousal. [Citations.]” (Martinez, supra, 11 Cal.4th at pp. 444-445, italics in Martinez omitted.)
“Of course, the manner of touching is not irrelevant under this view. ‘[T]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.’ [Citations.] Other relevant factors can include the defendant's extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim’s cooperation or to avoid detection [citation].” (Martinez, supra, 11 Cal.4th at p. 445, italics added; see also People v. Warner (2006) 39 Cal.4th 548, 558.)
In his opening brief, defendant claims that no authority is cited in the Bench Notes to CALCRIM No. 1110 for the challenged italicized language. Martinez is cited as legal authority for CALCRIM No. 1110 under “Any Touching of Child With Intent to Arouse.” The People rely on Martinez. Defendant fails to even cite, let alone discuss, Martinez in his reply brief. Defendant claims that the predecessor instruction, CALJIC No. 10.41, did not include such language. Although CALJIC No. 10.41 did not include the same language, it contained language that conveyed the same meaning [“To constitute a lewd or lascivious act, it is not necessary that the bare skin be touched. The touching may be through the clothing of the child.”]
Defendant’s contention is just plain wrong. Finding no conflict in the language, we reject defendant’s claim that the jury may have been misled. We find no error in the instruction given to the jury.
II
The parties stipulated that when defendant was contacted by officers at his home, defendant was cooperative and agreed to meet with detectives downtown for questioning. Citing this stipulation, defense counsel requested an instruction on the absence of flight. The prosecutor opposed the request. The court denied the request, finding the instruction inapplicable.
Defendant requested the following instruction:
On appeal, defendant acknowledges that People v. Staten (2000) 24 Cal.4th 434 rejected a claim that an instruction on lack of flight was required but raises the issue to preserve it for reconsideration by the California Supreme Court; he claims that the reasoning in Staten is flawed. Staten determined that “refusal of an instruction on the absence of flight was proper and was not unfair in light of Penal Code section 1127c.” Staten concluded that “such an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight.” (Staten, supra, 24 Cal.4th at p. 459.)
We are bound by Staten. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject defendant’s claim.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , J., CANTIL-SAKAUYE , J.
“You may consider whether or not a person fled immediately after the commission of a crime, or after [he] [she] was accused of a crime as a circumstance in this case. The presence of flight may tend to establish a consciousness of guilt but this is not sufficient in itself to establish guilt. However, on the other hand, the absence of flight may tend to show that the defendant did not have a consciousness of guilt and this fact alone may be sufficient to create a reasonable doubt as to the defendant’s guilt. The weight and significance of these circumstances, if any, are matters for your determination.”