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Name: People v. Cuellar
Case #: B233089
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 08/22/2012

CALCRIM No. 1120 (Pen. Code, § 288.5, subd. (a)) is problematic because of its potential for negating the requirement of intent. On appeal following his conviction for violating section 288.5, subdivision (a) (continuous sexual abuse of a child), appellant argued that the second sentence of the definition of lewd or lascivious conduct in CALCRIM No. 1120 (which states that the touching need not be done in a lewd or sexual manner) is inconsistent with the first and negates the requirement that the touching be done in a lewd and lascivious manner; i.e. accompanied by the intent for sexual gratification. The Court of Appeal agreed that the instruction was problematic and noted that when the instruction is read as a whole, although the second sentence may do no harm, it certainly does no good. It recommended that the language be reconsidered to simply state that the touching need not be of an intimate part of the victim’s body as long as it is with the required intent. In this case, however, because of the overwhelming evidence, including appellant’s confession, any error in the instruction was harmless under any standard.