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Name: People v. Anderson
Case #: H031106
Court: CA Court of Appeal
Opinion Date: 11/10/2008

Although the prosecutor committed error by misstating the law regarding the requisite intent during opening argument, that error was harmless. At appellant’s trial for lewd acts on a child (Pen. Code, § 288(c)(1)), the prosecutor told the jury in opening statement, over defense objection, that proof of intent for present sexual gratification was not required; instead, it was enough if the defendant intended that he obtain sexual gratification in the future. The court later denied counsel’s request to modify the standard lewd act instruction to explain that the intended sexual gratification had to be present at the time of the touching. After his conviction, appellant argued on appeal that the prosecutor erred by misstating the law and that this violated his right to due process. The Court of Appeal noted the specific intent element for a lewd act on a child is “one in which the defendant acts with ‘a present intent to receive or give immediate sexual gratification.'” (Quoting People v. Martinez (1995) 11 Cal4th 434, 451, fn. 17.) So, the court concluded the prosecutor committed error in misstating the law by arguing contrary to Martinez. But the court found the misstatement was harmless because the objectionable argument was brief, it was countered by the defense argument, and because the court said it would provide instructions on the law and properly did so later, and because the prosecutor clarified the remarks in closing argument. Given all this, it is not reasonably likely that the jury applied the improper remarks in the wrong manner.