Frazier

Alfred Frazier appeals from the judgment following his conviction on one count of committing a lewd act with a child under age 14 and one count of annoying or molesting a child under 18. We hold the jury was improperly instructed under former CALJIC No. 2.50.01 and this error prejudiced defendant. Therefore, we reverse.

Facts and Proceedings Below

Defendant’s convictions followed his third trial for the same incident with the same child, nine-year-old Caryn P. The evidence, viewed in the light most favorable to the judgment, showed the following.

Caryn P. spent the night at the house of her uncle, Thomas F. She went to sleep in the top bunk of a bunk bed in her cousin Christian’s room. Sometime during the night Caryn awoke because she felt a finger touching her, moving slowly and gently in a circular motion over her bare buttocks. Her underpants were pulled down. When she rolled over she saw defendant, who is also one of her uncles, drop to the floor from the stool on which he had been standing and then crawl out of the room. Christian, who had been sleeping in the lower bunk, woke up when he felt something shaking the bed. He saw defendant standing on a stool next to…