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Name: People v. Lopez
Case #: H026297
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 11/08/2004
Subsequent History: Revw. den. 2/16/05

In appellant’s SVP trial, the jury was instructed that masturbation could be accomplished whether the touching involved contact with the victim or offender’s skin, i.e. that it could be accomplished over the victim’s clothing. On appeal, appellant argued that the instruction was erroneous because it permitted the jury to find that his prior offenses involved “substantial sexual conduct” based on evidence that he touched the minors’ genitals through their clothing. The court of appeal disagreed and affirmed. Masturbation includes any touching or contact with the genitals of either the victim or the offender whether over or under clothing, with the requisite intent. Further, there is a commonly understood meaning of the word masturbation, and it is not limited to skin-to-skin touching. Therefore, the SVPA is not unconstitutionally vague as applied to him because it fails to define masturbation. Also, the SVPA did not violate appellant’s equal protection rights because the definition of “mental disorder” is broader than that contained in the MDO Act.