Opinion
PIERSON, J.*
Following a preliminary hearing, respondent Austin was charged in an information with count one, kidnaping (Pen. Code, § 207) and count two, lewd act upon or with a child (Pen. Code, § 288). Construed favorably to the prosecution, the evidence at the preliminary hearing established the following:
On July 13, 1978, eight-year-old Miss M. was playing tag with her brother and two cousins on the steps of a church in Ivanhoe. Respondent drove up to the church in his pickup, got out with an open knife in his hand and approached the children. Alarmed, the children ran to some bushes but came out at respondent’s request. Austin asked “Do you want to make a couple of bucks?” He told M. he would tell her what to do—“just pull down her pants.” Miss M. was indecisive and Austin pushed and guided her to a nearby orange grove. M.’s brother R., age 12, followed his sister.
Once in the orange grove, Austin closed the blade on his knife, but continued to hold it in his hand. He told M. to take down her pants. M. was fearful of what Austin might do with the knife so she complied with his request. She then pulled up her pants and was given a dollar by Austin. He asked if she wanted to make some more money by allowing him to touch her. She declined and the children left. Austin did not touch M. when she took her pants down nor did he touch her thereafter.
At a hearing on respondent’s Penal Code section 995 motion, the trial court dismissed count two on the ground that no touching had occurred. The district attorney appealed.
A Touching of the Victim Is Necessary to Commit a Violation of Penal Code Section 288
A large number of reported cases have construed Penal Code section 288. No case has been brought to our attention, nor are we aware of [113] any, which did not factually involve a touching of the victim. In People v. Coontz (1953) 119 Cal.App.2d 276, 279 [259 P.2d 694], the court stated that to commit a violation of Penal Code section 288 “The only requirement is a touching with lustful intent.” This language was also cited in People v. Morales (1967) 254 Cal.App.2d 194, 199 [61 Cal.Rptr. 764]. Although the statement was not necessary to the decision in either case, it sets forth a common view with which we agree that a touching is necessary to violate the code section. (See also People v. Roberts (1972) 26 Cal.App.3d 385 [103 Cal.Rptr. 25].)
The Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238 [158 Cal.Rptr. 330, 599 P.2d 636] construed “lewd and dissolute conduct” as contained in Penal Code section 647, subdivision (a). Concerning that section, it held that to engage in lewd and dissolute conduct requires a touching of certain parts of the body (id., at p. 244) and that the terms “lewd,” “dissolute” and “lascivious” are synonymous (id., at p. 248). Although the Pryor case can be distinguished from the instant case on a number of grounds, the fact that in Pryor touching was required to commit misdemeanor section 647, subdivision (a), lewd conduct weighs in our determination that a touching is required to commit a felonious section 288 lewd act.
The district attorney argued at the section 995 hearing that the contact on the way to the orange grove was a sufficient touching. Respondent takes the opposite position, citing People v. Webb (1958) 158 Cal.App.2d 537 [323 P.2d 141], Whether, as respondent claims, the act of physically pushing M. while holding an open knife and compelling her to travel some 60 to 70 feet to the orange grove is more innocent than the conduct of the defendant in Webb, supra, (putting defendant’s arm around the boy’s shoulder while walking to a bungalow (id., at p. 542)) is questionable. According to the testimony, Austin had declared at least a portion of his lustful desires at the church steps. By implication, he wanted the child’s privates exposed.
It may be argued that Austin’s touching was not done with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of himself or of Miss M., but was done merely to place the child in a more secluded area where he might then, with the required specific intent, physically contact her. However, Austin’s contact would be sufficient providing it was done for the purpose of some immediate sexual gratification. We can not say as a matter of law that his actual touch[Oct. [114] ing was divorced from concurrent sexual stimulation. Such a determination was for the trier of fact.
Apart from the journey to the orchard, a touching occurred in the performance of the act of removing the pants. “‘It is common knowledge and common experience to conclude that in removing the panties of the child the hands of the one removing the panties would necessarily and undoubtably come in contact with the body of the child so outraged.’” (People v. Pollock (1943) 61 Cal.App.2d 213, 215 [142 P.2d 328], quoting People v. Lanham (1934) 137 Cal.App. 737, 740 [31 P.2d 410].) Here, by coercion of an exposed knife coupled with the enticement of monetary reward the minor was caused to physically touch her own person.
The Touching Necessary to Violate Penal Code Section 288 May Be Done by the Child Victim on Its Own Person Providing Such Touching Was at the Instigation of a Person Who Had the Required Specific Intent
“[A]t common law one who caused a crime to be committed by an innocent agent was deemed guilty of the crime as a principal. . .. ” (Workman v. State (1939) 216 Ind. 68 [23 N.E.2d 419, 420].) This rule has been applied to burglary, Moore v. State (1977) 267 Ind. 270 [369 N.E.2d 628, 632]; theft, People v. Taylor (1973) 30 Cal.App.3d 117, 121-122 [106 Cal.Rptr. 216]; forgery, People v. Jack (1965) 233 Cal.App.2d 446, 456-457 [43 Cal.Rptr. 566]; murder, State v. Benton (1970) 276 N.C. 641 [174 S.E.2d 793, 801]; and Fritz v. State (1964) 25 Wis.2d 91 [130 N.W.2d 279, 281]. The common law rule is contained in California Penal Code section 31.
In People v. Roberts, supra, 26 Cal.App.3d 385, the court upheld the prosecution of Roberts for his conduct in instructing five children, ages eight to thirteen, to engage in sexual activities with themselves and with one another. It was held that Roberts himself need not have physical contact with any child in order to be guilty as an aider and abettor. Under construction of cases citing the above quoted common law rule, a person who causes an idiot, or an innocent child to do the touching is a principal without regard to consideration of aiding and abetting. (26 Cal.App.3d at p. 388.)
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Opinion
PIERSON, J.*
Following a preliminary hearing, respondent Austin was charged in an information with count one, kidnaping (Pen. Code, § 207) and count two, lewd act upon or with a child (Pen. Code, § 288). Construed favorably to the prosecution, the evidence at the preliminary hearing established the following:
On July 13, 1978, eight-year-old Miss M. was playing tag with her brother and two cousins on the steps of a church in Ivanhoe. Respondent drove up to the church in his pickup, got out with an open knife in his hand and approached the children. Alarmed, the children ran to some bushes but came out at respondent’s request. Austin asked “Do you want to make a couple of bucks?” He told M. he would tell her what to do—“just pull down her pants.” Miss M. was indecisive and Austin pushed and guided her to a nearby orange grove. M.’s brother R., age 12, followed his sister.
Once in the orange grove, Austin closed the blade on his knife, but continued to hold it in his hand. He told M. to take down her pants. M. was fearful of what Austin might do with the knife so she complied with his request. She then pulled up her pants and was given a dollar by Austin. He asked if she wanted to make some more money by allowing him to touch her. She declined and the children left. Austin did not touch M. when she took her pants down nor did he touch her thereafter.
At a hearing on respondent’s Penal Code section 995 motion, the trial court dismissed count two on the ground that no touching had occurred. The district attorney appealed.
A Touching of the Victim Is Necessary to Commit a Violation of Penal Code Section 288
A large number of reported cases have construed Penal Code section 288. No case has been brought to our attention, nor are we aware of [113] any, which did not factually involve a touching of the victim. In People v. Coontz (1953) 119 Cal.App.2d 276, 279 [259 P.2d 694], the court stated that to commit a violation of Penal Code section 288 “The only requirement is a touching with lustful intent.” This language was also cited in People v. Morales (1967) 254 Cal.App.2d 194, 199 [61 Cal.Rptr. 764]. Although the statement was not necessary to the decision in either case, it sets forth a common view with which we agree that a touching is necessary to violate the code section. (See also People v. Roberts (1972) 26 Cal.App.3d 385 [103 Cal.Rptr. 25].)
The Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238 [158 Cal.Rptr. 330, 599 P.2d 636] construed “lewd and dissolute conduct” as contained in Penal Code section 647, subdivision (a). Concerning that section, it held that to engage in lewd and dissolute conduct requires a touching of certain parts of the body (id., at p. 244) and that the terms “lewd,” “dissolute” and “lascivious” are synonymous (id., at p. 248). Although the Pryor case can be distinguished from the instant case on a number of grounds, the fact that in Pryor touching was required to commit misdemeanor section 647, subdivision (a), lewd conduct weighs in our determination that a touching is required to commit a felonious section 288 lewd act.
The district attorney argued at the section 995 hearing that the contact on the way to the orange grove was a sufficient touching. Respondent takes the opposite position, citing People v. Webb (1958) 158 Cal.App.2d 537 [323 P.2d 141], Whether, as respondent claims, the act of physically pushing M. while holding an open knife and compelling her to travel some 60 to 70 feet to the orange grove is more innocent than the conduct of the defendant in Webb, supra, (putting defendant’s arm around the boy’s shoulder while walking to a bungalow (id., at p. 542)) is questionable. According to the testimony, Austin had declared at least a portion of his lustful desires at the church steps. By implication, he wanted the child’s privates exposed.
It may be argued that Austin’s touching was not done with the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of himself or of Miss M., but was done merely to place the child in a more secluded area where he might then, with the required specific intent, physically contact her. However, Austin’s contact would be sufficient providing it was done for the purpose of some immediate sexual gratification. We can not say as a matter of law that his actual touch[Oct. [114] ing was divorced from concurrent sexual stimulation. Such a determination was for the trier of fact.
Apart from the journey to the orchard, a touching occurred in the performance of the act of removing the pants. “‘It is common knowledge and common experience to conclude that in removing the panties of the child the hands of the one removing the panties would necessarily and undoubtably come in contact with the body of the child so outraged.’” (People v. Pollock (1943) 61 Cal.App.2d 213, 215 [142 P.2d 328], quoting People v. Lanham (1934) 137 Cal.App. 737, 740 [31 P.2d 410].) Here, by coercion of an exposed knife coupled with the enticement of monetary reward the minor was caused to physically touch her own person.
The Touching Necessary to Violate Penal Code Section 288 May Be Done by the Child Victim on Its Own Person Providing Such Touching Was at the Instigation of a Person Who Had the Required Specific Intent
“[A]t common law one who caused a crime to be committed by an innocent agent was deemed guilty of the crime as a principal. . .. ” (Workman v. State (1939) 216 Ind. 68 [23 N.E.2d 419, 420].) This rule has been applied to burglary, Moore v. State (1977) 267 Ind. 270 [369 N.E.2d 628, 632]; theft, People v. Taylor (1973) 30 Cal.App.3d 117, 121-122 [106 Cal.Rptr. 216]; forgery, People v. Jack (1965) 233 Cal.App.2d 446, 456-457 [43 Cal.Rptr. 566]; murder, State v. Benton (1970) 276 N.C. 641 [174 S.E.2d 793, 801]; and Fritz v. State (1964) 25 Wis.2d 91 [130 N.W.2d 279, 281]. The common law rule is contained in California Penal Code section 31.
In People v. Roberts, supra, 26 Cal.App.3d 385, the court upheld the prosecution of Roberts for his conduct in instructing five children, ages eight to thirteen, to engage in sexual activities with themselves and with one another. It was held that Roberts himself need not have physical contact with any child in order to be guilty as an aider and abettor. Under construction of cases citing the above quoted common law rule, a person who causes an idiot, or an innocent child to do the touching is a principal without regard to consideration of aiding and abetting. (26 Cal.App.3d at p. 388.)
Significant harm may occur to a child who is caused to engage in or submit to the lustful intendments of a person seeking sexual self-gratifi[115] cation. The range of proscribed potentially harmful acts is limited only by the imagination of the perpetrator. The harm may be manifested in many different mental, emotional and physical ways, leaving a child with possible lasting and debilitating fears.
Three persons who each have requisite specific section 288 intent may create independently the same significant harm to children. The first person himself could perform the lewd touching of a child. The second person could cause an innocent third person to do the same type of touching, and the third person could cause the child to do the same type of touching upon or with itself.
In the instant case, Austin’s particular intent may be inferred from his conduct. He was responsible for the touching and removal of the child’s pants as surely as if he had done it himself. No different specific intent would be inferred had he removed the pants himself.
People v. Hobbs (1952) 109 Cal.App.2d 189, 192 [240 P.2d 411] stated: “Section 288 of the Penal Code was enacted to protect children from the lustful advances and tamperings of callous and unscrupulous persons as well as from the assaults of depraved unfortunates. In all cases arising under this statute the 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. In People v. Owen, 68 Cal.App.2d 617, 620..., it is said that ‘It is not the accomplishment but the intent of the party that is the basis of the commission of the acts condemned in Penal Code section 288.’ If intent of the act, although it may have the outward appearance of innocence, is to arouse, or appeal to, or gratify the lust, the passion or the sexual desire of the perpetrator it stands condemned by the statute, or if it is intended to arouse feelings of passion or sexual desire in the child, it likewise stands condemned. The intent with which the act is done is manifested by the circumstances under which it was committed. (Pen. Code, § 21.) As is said in People v. Owen, supra, each case involving a lustful advance upon a child ‘must be decided by the evidence introduced and is not necessarily controlled by a previous decision.’” (Italics in original.)
The same reason which compels application of the rule making a principal liable for the acts of his agents in Roberts, supra, 26 Cal.App.3d 385, compels application of that rule in the instant case. Children have the right to be free from lustful advances and tamperings of [116] callous and unscrupulous persons. That right is recognized by the proscription imposed by section 288.
Judgment of the trial court dismissing count two of the information is reversed and the case is remanded for further proceedings.
Hamlin, J.,* concurred.