People v. Ash

McCOMB, J.

Prom a judgment of guilty of violating section 288 of the Penal Code after trial before a court without a jury, defendant appeals.

In his opening brief defendant says:

“Briefly summarized the evidence discloses that Carol

[584]

Morton of the age of five years was invited to defendant’s room, which was on the premises of his employment and where she was visiting. That while there he had her lay down on the bed where he removed her panties and used his tongue on her, indicating between her legs. That he then placed his tongue in her mouth and asked her to do the same. ’ ’

Defendant relies for reversal of the judgment on three propositions, which will be stated and answered hereunder seriatim:

First:

In view of the holding in People

v.

Angier, 44 Cal.App.2d 417, 420 [112 P.2d 659], defendant was not guilty of violating section 288 of the Penal Code, since the evidence as set forth above does not show that defendant touched with his tongue the sexual organ of the complaining witness.

This proposition is untenable,

People

v.

Angier

had reference to a violation of section 288a of the Penal Code, which makes it a penal offense for any person to participate in the “act of copulating the mouth of one person with the sexual organ of another.” The cited case had no reference to section 288 of the Penal Code, which makes it a felony for any person to commit a lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of fourteen years with intent of arousing, appealing to or gratifying the lust or passions or sexual desires of such person or child.

(People

v.

Bronson,