People v. James P.

Opinion

BEACH, J.

The juvenile court declared James P., a 15-year-old minor, a ward of the court (Welf. & Inst. Code, § 602) after finding that the minor had contributed to the delinquency of a minor (Pen. Code, § 272), necessarily included in the offense of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288), which was the offense alleged in the petition. The court ordered appellant placed home on probation, with permission for placement with an aunt.

The minor appeals, claiming that because he himself is a minor, he falls within the class sought to be protected under Penal Code section

[684]

272 and therefore should not have been “found .. . guilty” under that section. We affirm.

Facts:

One night in late July or early August 1979, while 10-year-old Yamina was staying with appellant’s mother (Yamina’s aunt), 15-year-old appellant came into Yamina’s bedroom and put some cream on her. Appellant then lay on top of Yamina and she felt his penis. Appellant did not hurt her. Yamina told her mother about the incident.

Discussion:

A juvenile court judge or referee may sustain a petition seeking to have a minor declared a ward of the court upon a finding that “the minor committed an offense included within that charged in the petition.” (I

n re Arthur N.

(1976) 16 Cal.3d 226, 233 [127 Cal.Rptr. 641, 545 P.2d 1345].) The offense of contributing to the delinquency of a minor (Pen. Code, § 272) is necessarily included in the offense of committing a lewd act upon a child (Pen. Code, § 288).

(People

v.

Harvath

(1969) 1 Cal.App.3d 521, 524 [82 Cal.Rptr. 48].) Appellant’s actions clearly came within the language of Penal Code section 272. He contends, however, that the Legislature intended Penal Code section 272 to apply only to adults and therefore he, being a minor, does not fall within the statute. In support of his argument, appellant points to his inability to find in the annotated Penal Code any case involving a violation of section 272 by a minor. He also relies upon certain language in a report released in 1961 by the Governor’s Special Study Commission on Juvenile Justice which, among other recommendations, proposed transferring the offense of contributing to the delinquency of the minor, which was then covered by Welfare and Institutions Code section 702, to the Penal Code because it essentially was “a misdemeanor committed by adults.”