Martinez

We granted review for the limited purpose of determining the acts necessary to sustain a conviction under Penal Code section 288. 1 This statute imposes criminal liability on anyone who “willfully and lewdly commits any lewd or lascivious act” upon the body of a child under the age of 14 “with the intent of arousing ... the lust, passions, or sexual desires” of either party. (Id., subd. (a).)

For almost a century, section 288 has been interpreted to require no particular form of physical contact. The courts have established in a long unbroken line of cases that the crime occurs whenever the trier of fact determines, based on all the circumstances, that an underage child was “touched” with the requisite sexual intent. A construction permitting conviction for any and all sexually motivated contact is supported by the relevant statutory language and surrounding scheme, and apparently has been accepted by the Legislature.

At defendant’s urging, the Court of Appeal rejected this long-standing approach. The court concluded that because section 288 literally requires both sexual motivation and a “lewd or lascivious act” it cannot be violated simply by any touching with sexual…

I concur in the judgment on the facts of this case. I do so because I read Penal Code section 288, subdivision (a), to impliedly define a “lewd or lascivious act” as any conduct committed “with the intent of arousing, appealing to, or gratifying” the “lust,” “passions,” or “sexual desires” of either the perpetrator or the underage victim.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General,

John R. Gorey, Sanjay T. Kumar and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BAXTER, J.

We granted review for the limited purpose of determining the acts necessary to sustain a conviction under Penal Code section 288. [1] This statute imposes criminal liability on anyone who "willfully and lewdly commits any lewd or lascivious act" upon the body of a child under the age of 14 "with the intent of arousing ... the lust, passions, or sexual desires" of either party. ( Id., subd. (a).)

For almost a century, section 288 has been interpreted to require no particular form of physical contact. The courts have established in a long unbroken line of cases that the crime occurs whenever the trier of fact determines, based on all the circumstances, that an underage child was "touched" with the requisite sexual intent. A construction permitting conviction for any and all sexually motivated contact is supported by the relevant statutory language and surrounding scheme, and apparently has been accepted by the…