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Name: People v. Benavides
Case #: S033440
Court: CA Supreme Court
District CalSup
Opinion Date: 02/17/2005

In this automatic appeal, appellant argued that he could not be convicted of lewd or lascivious conduct under section 288 absent independent evidence from the evidence of rape and sodomy, and that the jury’s finding of guilt on the rape and sodomy charges necessarily precluded a finding of lewd conduct. The Court rejected his argument, finding that lewd conduct with a child is not a necessarily included offense of either rape or sodomy, which require only general intent. A conviction for lewd conduct with a child can be obtained and upheld by the same evidence used to show the defendant raped and sodomized the child. Further, there was evidence in addition to the rape and sodomy which supported the 288 conviction, such as picking up and disrobing the child and holding her in a position to facilitate the sex acts. Further, a unanimity instruction was not required regarding which specific acts supported the lewd conduct charge. The jury was not presented with conflicting theories about how the lewd act would have occurred.