People v. Austin

Following a preliminary hearing, respondent Austin was charged in an information with count one, kidnaping (Pen. Code, § 207) and count two, lewd act upon or with a child (Pen. Code, § 288). Construed favorably to the prosecution, the evidence at the preliminary hearing established the following:

On July 13, 1978, eight-year-old Miss M. was playing tag with her brother and two cousins on the steps of a church in Ivanhoe. Respondent drove up to the church in his pickup, got out with an open knife in his hand and approached the children. Alarmed, the children ran to some bushes but came out at respondent's request. Austin asked "Do you want to make a couple of bucks?" He told M. he would tell her what to do — "just pull down her pants." Miss M. was indecisive and Austin pushed and guided her to a nearby orange grove. M.'s brother R., age 12, followed his sister.

Once in the orange grove, Austin closed the blade on his knife, but continued to hold it in his hand. He told M. to take down her pants. M. was fearful of what Austin might do with the knife so she complied with his request. She then pulled up her pants and was given a dollar by Austin. He asked…

Following a preliminary hearing, respondent Austin was charged in an information with count one, kidnaping (Pen. Code, § 207) and count two, lewd act upon or with a child (Pen. Code, § 288). Construed favorably to the prosecution, the evidence at the preliminary hearing established the following:

On July 13, 1978, eight-year-old Miss M. was playing tag with her brother and two cousins on the steps of a church in Ivanhoe. Respondent drove up to the church in his pickup, got out with an open knife in his hand and approached the children. Alarmed, the children ran to some bushes but came out at respondent’s request. Austin asked “Do you want to make a couple of bucks?” He told M. he would tell her what to do—“just pull down her pants.” Miss M. was indecisive and Austin pushed and guided her to a nearby orange grove. M.’s brother R., age 12, followed his sister.

Once in the orange grove, Austin closed the blade on his knife, but continued to hold it in his hand. He told M. to take down her pants. M. was fearful of what Austin might do with the knife so she complied with his request. She then pulled up her pants and was given a dollar by Austin. He asked if she wanted to…

I respectfully dissent.

Liminally, this case should be placed in proper perspective. An affirmance of the trial judge here would not mean that the defendant Austin necessarily would go free. Insofar as the record shows in this case, Austin would still face the kidnaping charge and any additional applicable charges other than a violation of Penal Code section 288. Affirmance would mean only the particular charge of violation of Penal Code section 288 is inapplicable. No reasonable person disagrees with the statement of the majority that “children have the right to be free from lustful advances and tamperings of callous and unscrupulous persons.” The duty to protect children is recognized by a considerable number of statutes in this state. However, that does not mean that a court is not obligated to follow the law and determine whether or not the particular acts alleged fall within the confines of the particular crime charged.

I agree with the conclusion of the majority that, contrary to the argument of appellant, a touching of the victim is necessary to commit a violation of Penal Code section 288. However, I reach that conclusion by a somewhat different road than does the…