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Amy App. Instruction that it was immaterial when offense charged in any particular count was committed, provided jury believed that precise offense charged in that particular count was committed and committed within three years prior to filing information, was not erroneous as misleading, where testimony offered concerned only the five acts alleged. Becker App. Testimony of female, giving month of offense and circumstances relating thereto, sufficiently fixed date of lascivious conduct.
Barnett App. The precise date on which the offenese of lewdness, punishable by this section, was committed, is not a material element, and an indictment charging commission within the period of limitations and prior to the finding of the indictment is sufficient. Fritts App. Ridout App. A motion for new trial of criminal prosecution, made on ground of newly discovered evidence relating to an alibi defense, was properly denied where trial established date of alleged offense to be a month and a day following date alleged in information, and no request for continuance was made by defendant when such situation developed at trial, and regardless of date defendant admitted occasion when offense was allegedly committed.
In prosecution for violation of this section, relating to crimes against children and for rape, wherein accused relied on defense of alibi, accused had the right to be advised of the exact occasion upon which he was charged with committing offense so as to be afforded the opportunity to present evidence in support of contention that he was not present with the prosecutrix at the time and place claimed. McCullough App. Waits App. In prosecution for kidnapping, burglary, and lewd conduct with three-year-old child, testimony of mother of alleged victim and chemist which tended to show that child had been on roof of apartment building where attack allegedly occurred had probative value and was properly admitted.
In prosecution for violation of this section, punishing crimes against children, testimony of prosecuting witness that the offense took place by some military place which was reached by certain road, was sufficient to show that offense was committed within the county, in absence of any evidence that defendant drove automobile with prosecuting witness outside county, since court could take judicial notice that there were two fields which were military places within the county, and that they were reached by such road.
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Bastio App. Evidence that defendant charged with lascivious conduct toward children admitted playing hide-and-seek with them at his home and that his home was in city wherein act was committed established locus delicti of offense. Adams App. McFadden App. In a prosecution for lewd and lascivious conduct on the body of a girl of 8 years, the trial court, to lay the foundation for the introduction of measurements made by a second witness of the distance from the place where a fire was built to the scene of the crime, properly permitted the prosecuting witness to testify that a few days before the trial she pointed out to another witness the place where the crime was committed.
Hinrich App. To sustain a conviction of attempted lewd or lascivious conduct with a minor under the age of 14, the prosecution has the burden of demonstrating 1 the defendant intended to commit a lewd and lascivious act with a child under 14 years of age, and 2 the defendant took a direct but ineffectual step toward committing a lewd and lascivious act with a child under 14 years of age. Reed App. A person may be guilty of an attempt to commit the crime, described in this section, of committing a lewd or lascivious act on a child under the age of 14 years.
Stouter Cal. Crime of attempted child molestation can be committed by speaking to victim over telephone. Conduct on part of defendant that consisted solely of a verbal communication with year-old victim that was solicitous in nature constituted preparation only and did not rise to level of an attempt so as to fall within proscription against attempting to commit a lewd or lascivious act on the body of a child under 14 years of age. La Fontaine App. Contributing to delinquency of minors by telling children under 14 years of age an obscene story without touching them would not constitute violation of this section, relating to commission of lewd and lascivious acts upon children.
Swanson-Birabent App. Where defendant is charged as aider and abettor, he need not have physical contact with victim to be guilty of offense under this section. One charged as an aider and abettor need not have physical contact with victim to be guilty of a violation of this section.
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Roberts App. Stanley 63 Cal. Slaughter App. To justify legal conclusion that child was accomplice of defendant accused of committing an immoral act against such child, proof must have been clear not only that child understood nature and effect of act, that act was forbidden, and, if he were to commit it, he would be punished, but also that he was conscious at time that he was committing a wrongful act. Williams App. Hulbart App. Criminal Law Key Number 7.
Sentencing and Punishment for committing multiple acts that violate PC Jimenez App. Palmer App. Conviction of defendant of multiple counts of child molestation based solely on generic testimony of repeated acts of molestation, unspecified as to time or place, does not violate due process.
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Higgins App. Consecutive sentences imposed upon defendant convicted of 14 counts of engaging in lewd and lascivious conduct with child under the age of 14 were not prohibited by statute even though some of the acts occurred during the same session. Bevan App. Multiple sex acts committed on a single occasion can result in multiple statutory violations; such offenses are generally divisible from one another under the multiple-punishments statute, and separate punishment is usually allowed.
Shaw App. Thomas App. Defendant could not lawfully be convicted of both greater offense of forcible lewd conduct with a child and included offense of lewd conduct on a child; remedy is to dismiss conviction of the less serious crime. Chan App. Misdemeanor offense of child annoyance is not a lesser included offense of felony of committing lewd act upon child under age of 14; offense of child annoyance requires commission of an objectively offensive act of annoyance or molestation, an element not necessarily present in the offense of committing a subjectively lewd act; disapproving Cal.
Lopez 79 Cal. Contributing to delinquency of minor is not lesser-included offense of performing lewd or lascivious act with child under Charge of lewd or lascivious acts with a child is not a lesser included offense of continuous sexual abuse of child, as the former requires the specific intent of appealing to or arousing the lust or passions of the defendant or the child, whereas the latter can be based upon a course of substantial sexual conduct which requires no specific intent but could be for the purpose of inflicting pain or appealing to the sexual interest of a third person.
Bright App. Santos App. Harlan App. Defendant could be convicted of child endangerment based on same conduct underlying charges of sodomy or lewd conduct with a child. Thompson Cal. It is no defense to charge of lewd and lascivious conduct to show that defendant committed another sexual crime in the process. Gordon App. Same acts constituting oral copulation, sodomy, or unlawful sexual intercourse could not be used as basis for conviction for lewd and lascivious conduct. Deletto App. Giving of an instruction that, though defendant was charged with two counts of violating this section proscribing lewd and lascivious conduct, he could only be convicted of one such count would have been futile because the act relied upon to support the violation charged in one count was separate and distinct from the conduct forming the basis of the violation charged in the other count.
Reeves App. Where, in prosecution for incest, commission of lewd and lascivious acts upon child under age of 14 years, and unlawful sexual intercourse, testimony was presented by victim to effect that defendant had engaged in multiple instances of sexual activity with her, convictions for unlawful sexual intercourse and incest were not subject to reversal on ground that such crimes were necessarily included in charge of lewd conduct.
Alva App. In prosecution for lewd and lascivious conduct toward a child, while contributing to delinquency of a minor is an included offense, breach of peace does not come within that category. Conviction on each count of indictment charging statutory rape, and lewd and lascivious conduct and contributing to the delinquency of a minor respectively, all based on the same acts would necessitate reversal of conviction on lesser offense of contributing to delinquency of a minor which is included in the other offenses.
Greer 30 Cal. Lewd conduct with a child is not a necessarily included offense of either rape or sodomy, which require only general intent. Benavides 24 Cal. A conviction for lewd conduct with a child can be obtained at trial and upheld on appeal by the same evidence used to show the defendant raped and sodomized the child.
Defendant who committed act of sodomy on child could be convicted of both sodomy and lewd and lascivious conduct with a child. Lewd act on child was not lesser included offense of sodomy or rape in that latter crimes were general intent crimes, while lewd act offense required proof of specific intent. Griffin Cal. Offense of lewd conduct is not lesser-included offense of sodomy because sodomy may be committed without specific intent required for conviction of lewd conduct.
Pearson Cal. Attempted sodomy is not an included offense of the crime of lewd conduct with child under Karpinski App. Lind App. Batres App. McAfee App. Contributing to the Delinquency of a Minor as an offense included within PC Contributing to delinquency of minor was not lesser included offense of lewd and lascivious conduct, and therefore trial court was not required to instruct jury sua sponte on contributing to delinquency of minor. Vincze App. Crime of contributing to delinquency of a minor is necessarily included in crime of lewd and lascivious acts upon bodies of two children, aged eight and eleven.
Harvath App. Offense of contributing to delinquency of a minor was necessarily included in offense of lewd and lascivious behavior toward a child, and defendant could be convicted of the lesser offense while acquitted of the greater.
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Doyle App. To establish violation of this section there must be proof of a specific intent to arouse, appeal to, or gratify the lust or passions or sexual desires of defendant or of the child, but proof of such specific intent is not necessary to establish the commission of offense commonly called contributing to delinquency of minor. Perkins App. Statement by prosecuting attorney in argument to jury that if defendant had committed upon prosecuting witnesses, who were under 14 years of age, violations of Welf. Chapman App.
Under indictment or information charging statutory rape and lewd and lascivious conduct, defendant may be convicted of offense of contributing to delinquency of a minor without any express charge of such offense and such conviction would necessarily constitute acquittal of the greater offenses of statutory rape and lewd and lascivious conduct.
Codina 30 Cal. Taylor App. Separate punishments for three acts of forcible lewd conduct during a single incident would not violate the multiple-punishments statute; each lewd act, specifically kissing, digital penetration, and forced fondling, was separate and distinct, and none of the acts were necessary to accomplish the others.
Separate punishments for forcible lewd conduct and aggravated sexual assault violated the multiple-punishments statute, where the charge of forcible lewd conduct was based on the very same act of digital penetration that formed the basis for the charge of aggravated sexual assault. Violation of statute prohibiting continuous sexual abuse of a child necessarily includes violation of statute prohibiting lewd or lascivious conduct with child under age of 14, for purpose of commitment determination of juvenile to California Youth Authority CYA.
Charge of child molestation was not a lesser-included offense of child molestation with duress so as to preclude conviction on both counts. Although trial court erred in failing to instruct jury that it could convict defendant of lesser included child-molestation offense if it was established by sufficient evidence, error was harmless in light of fact that jury was properly instructed on charge of assault with intent to commit rape and its lesser included offense, misdemeanor assault, and proceeded to convict defendant of greater offense so that jury necessarily resolved intent issue in lewd and lascivious act case adversely to defendant and instructional error was thus not prejudicial because it did not remove a material issue from consideration of jury.
Poon App. Miranda App. Oral copulation with a minor functions as primary offense, as opposed to being a lesser included offense of lewd or lascivious act with child, in only two instances: 1 when act of oral copulation is voluntary and victim is 16 or 17 years old, and 2 when act is voluntary, victim is 14 or 15 years old, and perpetrator is not over 21 years old. Hofsheier 39 Cal. Cline App. Grimes App.
Where both convictions of defendant for lewd or lascivious acts on the body of a child under 14 and for sexual perversion could not stand, because both were based on the same act, judgment of conviction of the less severely punishable offense, which was the sexual perversion, would be reversed, and judgment of conviction for lewd or lascivious acts on the body of a child under 14 would be affirmed.
Oral copulation committed at same time as lewd and lascivious offense against 11 year old boy was not included in the latter offense, and where offenses were based on separate and independent acts, defendant was properly charged with the two crimes and did not suffer double jeopardy. Akers App. Sex perversion committed at same time as lewd and lascivious offense against a child under 14 years of age was not included in the latter offense, and separate punishment for both offenses was permissible, where offenses were based on separate and distinct acts.
Slobodion 31 Cal. Unlawful Sexual Intercourse as both a primary and lesser offense of PC Unlawful sexual intercourse is not a lesser-included offense of lewd and lascivious conduct with child under 14 requiring an appropriate instruction on lesser-included offenses. Since evidence clearly showed that act relied upon to support charge of attempted unlawful sexual intercourse was the same act that formed basis for prosecution for lewd and lascivious acts upon body of child under age of 14 years, trial court erred in failing to instruct jury that it could return no more than one guilty verdict, but judgment would be affirmed where the trial court sentenced defendant on the more serious conviction while striking the other count.
Nicholson App. While a crime may be committed under this section without its amounting to rape, it is impossible that a rape may be committed upon a child under age of fourteen years without thereby violating the provisions of such section. Stampher App. Conviction on count charging assault with intent to commit rape was not void as inconsistent with acquittal on other counts charging lewd and lascivious conduct on body of child and conduct tending to cause minor to lead lewd or immoral life. Kearney 20 Cal. In prosecution for statutory rape and for violation of this section, where only acts proved were acts of rape, the fact that jury acquitted defendant of violation of this section, did not amount to an acquittal of rape charged, since two offenses are separate and jury could have convicted defendant of either offense.
Stangler 18 Cal. One who commits lewd acts with child without intent to commit rape, but subsequently conceives such intent and commits rape, may be convicted of lascivious acts with child because of previous conduct, as well as of rape. That defendant also was guilty of rape, attempt to commit rape, or assault with intent to commit rape did not invalidate conviction of committing lewd and lascivious acts upon child under 14, where there was evidence tending to prove commission of such offense.
Piburn App. Acquittal of rape did not require acquittal of lewd and lascivious conduct, elements of rape and included offenses not being same as those of lewd and lascivious conduct. Jameson App. Requiring noticed hearing prior to appointment of counsel for allegedly sexually abused minors would be prudent.
Victim is not party to criminal action, so any counsel appointed for allegedly sexually abused minors could not have the same status, vis-a-vis his ability to control proceedings, as prosecutor or defense counsel. Appointment of counsel for alleged minor victims of lewd and lascivious acts is permissible, although subd. Although counsel appointed for children who are alleged victims of lewd and lascivious acts will have ethical obligations toward children as clients, their role under subd. If trial court appoints counsel for child who is allegedly victim of lewd or lascivious acts pursuant to subd.
Evidence at trial for attempting to commit a lewd act with a child under the age of 14 did not warrant jury instruction on entrapment, even if volunteer for private organization, who posed as year-old girl on internet, was working at the request of law enforcement; defendant initiated contact with a year-old girl on the Internet, showing her a picture of his penis to find out how she would react, defendant began a conversation about sex and her experience once he confirmed she was not turned off by the pictures, defendant had her watch him masturbate and told her about what he wanted to do to her, defendant told volunteer that he would have to meet her in private because of his age, and volunteer merely provided an opportunity for defendant to spend time alone with a year-old girl in an empty house.
Federico App. Volunteer for organization who posed as year-old girl on internet in an attempt to discover sexual predators was not acting as an agent of law enforcement, for entrapment purposes, although law enforcement officers participated in sting operation by arresting defendant when he arrived at residence, where volunteer was acting at the direction of organization rather than law enforcement, which was brought into the sting only at the end, and organization was committed to monitoring the internet and would continue to do so whether or not law enforcement came to sting operation.
That children under 14 years whom defendant intended to molest did not exist, but were created by undercover detectives corresponding with defendant, did not amount to mistake of fact that could be raised as defense to charge of attempted molestation; defendant showed no honest and reasonable, or even unreasonable, belief that his actions would have legal outcome. Filson App. Robinson App. Simmons App. In re McSherry App. McSherry App. Maguire App. Defendant did not, by pleading guilty to three counts of child molestation, waive statute of limitations challenge to two of those convictions.
Statute that allowed prosecution of certain enumerated sex crimes which occurred at any time before January 1, , including any crime otherwise barred by statute of limitations, if prosecution was commenced within one year of the time that victim reported an independently corroborated crime, necessarily applied in case where the six-year limitations period for lewd conduct against children had expired before January 1, Frazer 88 Cal. Statute providing limitations period of one year from date a person of any age reported to law enforcement agency that he or she was victim of lewd acts while under age of 18 years violated ex post facto protections insofar as statute purported to revive and extend the already expired three-year limitations period applicable to the charged offenses.
Lynch v. Valdez App. Simpson App. Hubbell App. Miralrio App. Information charging defendant with attempted lewd acts upon fictitious or imaginary children was supported by evidence of letters, telephone conversations, and conversation at motel indicating his intent to sexually molest two girls that police sting operation had led him to believe existed, combined with evidence of his act of entry into motel room where he believed they were, notwithstanding that consummation of his intent was factually impossible.
Keister App. Prosecutor was not required to charge single count of continuous sexual abuse of child, rather than ten counts of lewd act on child, even if defendant resided in same home or had recurring access to child and engaged in three or more acts of substantial sexual conduct with child over period of at least three months.
Van Hoek App. Defendant convicted of committing lewd and lascivious acts on child under age of 14 received adequate notice of charges against him when information conformed to state notice requirements and specific date of offenses was not element of charges, defendant did not seek more definite statement of charges, defendant received additional notice from preliminary hearing and from trial itself, which enabled him to mount well-informed defense, and hypothesized inability to defend against individual instances of molestation was irrelevant to innocence defense presented.
Walsh v. Gomez, C. Vargas App. Rogers Cal. Although there was substantial evidence of crimes before trier of fact on charge of commission of lewd and lascivious act with child under 14 years of age during a specified one-year period where there was no evidence as to an individual, specific crime and there was a failure to prove any one act within the statute of limitation, there was not substantial evidence to prove any one act as required to deny defense motion for acquittal.
Creighton App. Brooks App. In re Vargas App. Guilty plea to three counts of committing lewd act upon a child under age 14, entered pursuant to an agreement that the nine remaining child molestation counts would be dismissed but that the conduct underlying two of those counts could be considered for sentencing purposes, was invalid; entire course of charged conduct could be considered at sentencing by way of required mental fitness report, and therefore defendant was substantially misadvised as to consequences of his plea.
Where juror in prosecution involving child molestation denied on voir dire that any event of a similar nature had happened to her but informed jury during its deliberations that when she was 15 her stepfather had caressed her sexually and inquired, much as defendant had allegedly asked his victim whether it felt good or hurt, defendant was not entitled to new trial on ground of jury misconduct in view of fact that juror had not intentionally concealed the incident but had forgotten it, that her remarks did not disclose bias or prejudice and that they apparently had no substantial influence upon ultimate verdict.
Resendez App. King v. White, C. Trial court did not have any duty to sua sponte instruct jury that sex crimes involving minor victim had to have been committed after certain date, as alleged in the information, in order for the prosecution to be timely.