People v. Self

Opinion

KING, J.

Christopher Donald Self appeals from a judgment of conviction for commission of a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a)). We hold the court erred in instructing the jury by defining a lewd or lascivious act as “any touching” with the required intent, since the law requires a sexual act, but the error was harmless beyond a reasonable doubt.

Self molested his seven-year-old niece, Stephanie, in the home of his mother, Carol.

Carol testified as follows: She had sent Stephanie to wake Self, who was sleeping in a bedroom. Stephanie was wearing a bathing suit and T-shirt. When Carol subsequently looked into the bedroom, Stephanie was lying on her back on top of Self, who was also on his back. Stephanie’s head was “snuggled” on Self’s neck. They were “kind of rocking back and singing,” and Self was hugging her. His hands were on the inside of Stephanie’s thighs.

Carol testified the situation “just [didn’t] look right,” although she denied that Self’s hands were where “everybody is insinuating.” However, Stephanie testified Self touched her between her legs with his finger and

[1225]

moved Ms finger in circles, and she could feel Ms “private” under the bedsheet.

In addition to instructing the jury on commission of a lewd or lascivious act upon a cMld under the age of 14 (Pen. Code, § 288, subd. (a)), the court gave lesser included offense instructions on the misdemeanor offenses of annoying or molesting a cMld (Pen. Code, § 647.6) and battery (Pen. Code, § 242). The court initially rejected defense counsel’s request for the lesser included offense instructions, ruling that the evidence only indicated a violation of section 288, subdivision (a), but the court ultimately gave the lesser instructions pursuant to agreement of counsel. Self contends the instructions did not adequately distinguish the two sex offenses.

The sex offense instructions were based on CALJIC No. 10.41, fifth edition 1988, and CALJIC No. 16.440, fifth edition 1992 pocket part.

CALJIC No. 10.41, on violation of Penal Code section 288, subdivision (a), states in pertinent part: “Every person who willfully and lewdly commits any lewd or lascivious act upon or with the body, or any part or member thereof, of a cMld under the age of 14 years, with the specific intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such cMld, is guilty of the crime of committing a lewd or lascivious act upon the body of a cMld in violation of section 288(a) of the Penal Code, [ft] A lewd or lascivious act is defined as