People v. Roberts

Opinion

SCHWEITZER, Acting P. J.

Defendant was charged in five counts with having aided and abetted five children, ages 8 to 13 years of age, to commit

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violations of Penal Code section 288 with themselves and with one another. The People appeal from an order setting aside counts I and II of the information. (Pen. Code, § 995.)

In granting the motion to dismiss these two counts the trial court stated that there was no evidence that defendant touched the alleged victims mentioned therein, that to constitute a violation of section 288, evidence of physical touching for sexual reasons is required; and that a person does not violate section 288 if he only advises and encourages children to commit acts proscribed by the section. On appeal the.People dispute these rulings and argue that one who advises and encourages another to commit acts in violation of section 288 is guilty thereof as a principal. (Pen. Code, § 31.

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) On the other hand ■ defendant contends that a person under the age of 14 years is incapable of committing crime (Pen. Code, § 26

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) and therefore he cannot be guilty of aiding and abetting a person to commit a crime which cannot be legally committed. Defendant also points out that since there was no evidence of force, fear or duress, the children were accomplices (Pen. Code, § 1111), and that he cannot be convicted on the uncorroborated testimony of the children.

Only a brief reference to the facts is necessary. The transcript of the preliminary hearing indicates that over a period of several months defendant instructed and encouraged the five alleged victims (ages 8 to 13), including Jeanie (count I) and Susan (count II), to engage in natural and unnatural sexual activities. The events were detailed explicitly by each of the children; magazines and equipment referred to by the children were recovered by the police, acting under the authority of a search warrant.

Each count of the information charged defendant with having “aided and abetted” the commission of the crime. Although section 288 speaks of lewd and lascivious acts upon a child, we know of no authority that requires that a defendant, charged as an aider and abettor, must have actual physical contact with the victim. The question has been considered in related offenses. Thus it has been held that a man may be convicted of being a principal in the rape of his wife if he aided and abetted its commission by another person, even though rape is defined as an act of sexual