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Name: People v. Lopez
Case #: E048027
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/23/2010

For purposes of a Penal Code section 288 violation (lewd acts upon a child), the touching element can be satisfied by a touching committed out of the defendant’s presence, but at his direction. Appellant was convicted of several offenses resulting from the sexual molestation of his step-daughters. At trial he moved to dismiss (Pen. Code, sec. 1118.1) two counts of lewd acts upon a child under 14 years of age, arguing there was no concurrence of a touching and a lewd intent, and that in fact there had been no touching at all. These two acts were based on acts appellant and the victims called “the money game” in which appellant told the girls to dress in lingerie, and search for coins while blindfolded, while appellant watched and took photos. It was undisputed appellant did not change the girls’ clothing, and the evidence suggested he was not even present when they did so. So he argued there was no evidence of sexual gratification while the girls were changing their clothes. The touching element broadly encompasses constructive touchings. (See People v. Austin (1980) 111 Cal.App.3d 110, 114-115; People v. Mickle (1991) 54 Cal.3d 140, 176.) Based on this principle and the legislative purpose, to protect sexual exploitation of children, the court found the statute did not require the defendant to actually be present when the touching occurs or observe it, as long as it is done at his direction. The touching is entirely dependent on “the sexual motivation and intent with which it is committed.” (People v. Martinez (1995) 11 Cal.4th 432, 449.) Under the totality of the circumstances here, there was a touching concurrent with lewd intent. Appellant directed the girls to remove their clothing and dress in provocative attire he provided. The act of changing clothes was motivated by appellant’s lascivious desire to watch the girls and take their pictures in these clothes, and was an integral part of his scheme.