section 288 lewd act in California

2022(See, e.g., People v. Thomas (2007) 146 Cal.App.4th 1278, 1294 [“In light of the evidence of defendant’s other sexual offenses against the other boys, no reasonable jury could have concluded that the incident was merely an offensive touching rather than a lewd act within the meaning of section 288.”], disapproved of on another ground by People v. Shockley (2013) 58 Cal.4th 400 ; People v. Campbell (2015) 233 Cal.App.4th 148, 167 [although the jury’s verdicts with respect to certain counts may “ ‘not categorically establish that the error [in failing to instruct on lesser included offenses as t

2014It also noted that the “People do not dispute that any lewd act within the meaning of section 288 is necessarily a harmful or offensive touching.” ( Thomas, supra, at p. 1292, fn. 8 , citing People v. Martinez, supra, 11 Cal.4th at p. 444 .) We must resolve the conflict between these cases.

2024In People v. Jones, our Supreme Court held that convictions for lewd acts under section 288 may properly be based on “nonspecific” or “generic” testimony from the victim, i.e., “testimony describing a series of essentially indistinguishable acts of molestation.” (People v. Jones (1990) 51 Cal.3d 294 , 299-300, 313-314 (Jones).) Jones observed that child sexual assault cases often involve a young victim and a “so-called ‘resident child molester,’ ” who “either lives with his victim or has continuous access to him or her.” (Id. at p. 299.) In such cases, the accuser may be able to describe “repe

2024In People v. Jones, our Supreme Court held that convictions for lewd acts under section 288 may properly be based on “nonspecific” or “generic” testimony from the victim, i.e., “testimony describing a series of essentially indistinguishable acts of molestation.” (People v. Jones (1990) 51 Cal.3d 294 , 299-300, 313-314 (Jones).) Jones observed that child sexual assault cases often involve a young victim and a “so-called ‘resident child molester,’ ” who “either lives with his victim or has continuous access to him or her.” (Id. at p. 299.) In such cases, the accuser may be able to describe “repe

2026(See Clotfelter, supra, 65 Cal.App.5th at pp. 57, 59.) Specific intent to commit a lewd act under section 288 “can seldom be proven by direct evidence, [so] it may be inferred from the circumstances.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 440 ; accord, Villagran, supra, 5 Cal.App.5th at p. 891 ; see Manibusan, supra, 58 Cal.4th at p. 87 [“‘[E]vidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’”].) Relevant circumstances include “‘the charged act,’” as well as 13 “other acts

2014It also noted that the “People do not dispute that any lewd act within the meaning of section 288 is necessarily a harmful or offensive touching.” ( Thomas, supra, at p. 1292, fn. 8 , citing People v. Martinez, supra, 11 Cal.4th at p. 444 .) We must resolve the conflict between these cases.

2013(People v. Fox (2001) 93 Cal.App.4th 394, 399 , [sexual intercourse is lewd act under § 288].) Therefore, contrary to defendant‟s position, he, as a person convicted under section 288(c)(1), is not similarly situated with a group of persons who are not subject to 14 mandatory registration for the commission of sexual acts with minors of the same age as the victims here.

2009(People v. Fox (2001) 93 Cal.App.4th 394, 399 [ 112 Cal.Rptr.2d 907 ] [sexual intercourse is lewd act under § 288].) Therefore, contrary to defendant’s position, he, as a person convicted under section 288(c)(1), is not similarly situated with a group of persons who are not subject to mandatory registration for the commission of sexual acts with minors of the same age as the victims here.

1997(See People v. Jones (1990) 51 Cal.3d 294, 328-330 [ 270 Cal.Rptr. 611 , 792 P.2d 643 ] (dis. opn. of Mosk, J.); People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190 , 1195 . . . .) It provides a severe penalty (6, 12 or 16 years in prison) for anyone who, while residing with or having recurring access to a child under the age of 14, engages, over 3 months or longer, in 3 or more acts of substantial sexual conduct, as defined in section 1203.066, subdivision (b), or lewd acts under section 288. (§ 288.5, subd. (a).) Only one count of section 288.5 may be charged for each victim, and no

1993(See People v. Jones (1990) 51 Cal.3d 294, 328-330 [ 270 Cal.Rptr. 611 , 792 P.2d 643 ] (dis. opn. of Mosk, J.); People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190, 1195 [ 270 Cal.Rptr. 751 ].) It provides a severe penalty (6, 12 or 16 years in prison) for anyone who, while residing with or having recurring access to a child under the age of 14, engages, over 3 months or longer, in 3 or more acts of substantial sexual conduct, as defined in section 1203.066, subdivision (b), or lewd acts under section 288. (§ 288.5, subd. (a).) Only one count of section 288.5 may be charged for each

2026(See Clotfelter, supra, 65 Cal.App.5th at pp. 57, 59.) Specific intent to commit a lewd act under section 288 “can seldom be proven by direct evidence, [so] it may be inferred from the circumstances.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 440 ; accord, Villagran, supra, 5 Cal.App.5th at p. 891 ; see Manibusan, supra, 58 Cal.4th at p. 87 [“‘[E]vidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’”].) Relevant circumstances include “‘the charged act,’” as well as 13 “other acts

2026(See Clotfelter, supra, 65 Cal.App.5th at pp. 57, 59.) Specific intent to commit a lewd act under section 288 “can seldom be proven by direct evidence, [so] it may be inferred from the circumstances.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 440 ; accord, Villagran, supra, 5 Cal.App.5th at p. 891 ; see Manibusan, supra, 58 Cal.4th at p. 87 [“‘[E]vidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’”].) Relevant circumstances include “‘the charged act,’” as well as 13 “other acts

2026(See Clotfelter, supra, 65 Cal.App.5th at pp. 57, 59.) Specific intent to commit a lewd act under section 288 “can seldom be proven by direct evidence, [so] it may be inferred from the circumstances.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 440 ; accord, Villagran, supra, 5 Cal.App.5th at p. 891 ; see Manibusan, supra, 58 Cal.4th at p. 87 [“‘[E]vidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’”].) Relevant circumstances include “‘the charged act,’” as well as 13 “other acts

2026(See Clotfelter, supra, 65 Cal.App.5th at pp. 57, 59.) Specific intent to commit a lewd act under section 288 “can seldom be proven by direct evidence, [so] it may be inferred from the circumstances.” (In re Mariah T. (2008) 159 Cal.App.4th 428, 440 ; accord, Villagran, supra, 5 Cal.App.5th at p. 891 ; see Manibusan, supra, 58 Cal.4th at p. 87 [“‘[E]vidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’”].) Relevant circumstances include “‘the charged act,’” as well as 13 “other acts

2026When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.” (People v. Hiscox (2006) 136 Cal.App.4th 253, 256 (Hiscox).) And, where the prosecutor failed to establish at trial when the charged acts occurred, “[i]t would be inappropriate for [an appellate court] to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.” (Id. at p. 261.) In counts 8 through 11, the People charg

2026(See People v. Chan (2005) 128 Cal.App.4th 408, 421 [recognizing nonforcible lewd act under section 288, subdivision (a) is a lesser included offense of forcible lewd act under section 288, subdivision (b)(1)].) The crimes are distinguishable in that forcible lewd act requires the defendant to have are lesser included offenses to the crimes alleged in Count 1, 2, 4 and 5.

2026(See People v. Chan (2005) 128 Cal.App.4th 408, 421 [recognizing nonforcible lewd act under section 288, subdivision (a) is a lesser included offense of forcible lewd act under section 288, subdivision (b)(1)].) The crimes are distinguishable in that forcible lewd act requires the defendant to have are lesser included offenses to the crimes alleged in Count 1, 2, 4 and 5.

2022(See, e.g., People v. Thomas (2007) 146 Cal.App.4th 1278, 1294 [“In light of the evidence of defendant’s other sexual offenses against the other boys, no reasonable jury could have concluded that the incident was merely an offensive touching rather than a lewd act within the meaning of section 288.”], disapproved of on another ground by People v. Shockley (2013) 58 Cal.4th 400 ; People v. Campbell (2015) 233 Cal.App.4th 148, 167 [although the jury’s verdicts with respect to certain counts may “ ‘not categorically establish that the error [in failing to instruct on lesser included offenses as t

2015He further argues that, because section 288 is not a lesser included offense of section 288.5, “his section 288.5 conviction cannot be viewed as the equivalent 43 of three section 288 convictions.”26 “Section 288.5 was enacted in 1989 in order to remedy some of the problems of pleading, proof and jury instruction that had arisen in the prosecution of ‘resident child molesters’ under section 288. [Citations.] It provides a severe penalty (6, 12 or 16 years in prison) for anyone who, while residing with or having recurring access to a child under the age of 14, engages, over [three] months or lo

2015He further argues that, because section 288 is not a lesser included offense of section 288.5, “his section 288.5 conviction cannot be viewed as the equivalent 43 of three section 288 convictions.”26 “Section 288.5 was enacted in 1989 in order to remedy some of the problems of pleading, proof and jury instruction that had arisen in the prosecution of ‘resident child molesters’ under section 288. [Citations.] It provides a severe penalty (6, 12 or 16 years in prison) for anyone who, while residing with or having recurring access to a child under the age of 14, engages, over [three] months or lo

2014(People v. Gonzalez (2012) 211 Cal.App.4th 132, 137 ; People v. Manchel (2008) 163 Cal.App.4th 1108, 1113 , disapproved on other grounds by People v. Picklesimer (2010) 48 Cal.4th 330, 338-339, fn. 4 ; but see People v. Ranscht (2009) 173 Cal.App.4th 1369, 1373-1374 [disagreeing with Manchel].) Arguably, there would be no potential equal protection violation in that case. 10 this principle, but makes no effort to explain why the words of the statute are ambiguous.

2014(County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 442 ; People v. Dunbar (2012) 209 Cal.App.4th 114, 117 [courts will not “countenance efforts to create an ambiguity by reference to extrinsic evidence; outside sources simply do not come into play when the language of a statute is clear and unambiguous”].) Defendant recognizes 2 We note that if the victim were 15 years old or younger, depending on the age of the defendant, intercourse could still qualify as a lewd act under section 288, which is a target crime under section 288.3.