PEOPLE v. CARSON

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Patrick CARSON, Defendant and Appellant.

Patrick CARSON, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; The PEOPLE, Real Party in Interest.

No. D019199, D021379.

Decided: December 22, 1994

Elizabeth A. Missakian, under appointment by the Court of Appeal, San Diego, for defendant and appellant and for petitioner. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Janelle B. Davis and Maxine P. Cutler, Deputy Attys. Gen., for plaintiff and respondent and for Real Party in Interest.

In this case we consider together an appeal and a petition for a writ of mandate.   Patrick Carson was convicted by a jury of one count of lewd and lascivious conduct on the body of Stephanie H., a child 14 or 15 years of age (Pen.Code 1, § 288, subd. (c)), and entered a guilty plea to one count of forcible lewd and lascivious conduct on the body of Serina T., a child under the age of 14 (§ 288, subd. (b)).  Carson was sentenced to a principal upper term of three years for the offense involving Stephanie and a concurrent lower term of three years for the offense involving Serina.

Carson contends the trial court erred in instructing the jury by defining lewd and lascivious act as “any touching” with the required intent, and by defining reasonable doubt pursuant to CALJIC No. 2.90.   Carson also contends the trial court erred in denying his motion to dismiss based on pre-information delay.   He has also filed a petition for writ of mandate asserting the trial court abused its discretion by denying his application for certificate of probable cause pursuant to section 1237.5.   We affirm the judgment and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Count 1:  Forcible Lewd and Lascivious Act, Serina T.

Serina lived with her father, but visited her mother every other weekend when she was between 9 and 11 years old.   Carson lived with Serina's mother.   Between April and November of 1989, while Serina was visiting her mother, Carson entered Serina's bedroom and rubbed Serina's back while she lay in bed.   Carson removed his and Serina's clothes then got into bed with her.   Carson proceeded to have sexual intercourse with Serina.   Carson told Serina not to tell anybody, warning her he could kill her mother and father.

Count 10:  Lewd and Lascivious Act, Stephanie H.

In May 1991, 13–year–old Stephanie spent the night with Serina at Serina's mother's apartment.   Stephanie and Serina were sleeping on a futon in the living room when Stephanie was awakened by someone rubbing her back.   Stephanie turned her head, and Carson, who was lying on the floor next to the futon, quickly jerked his hand away.   Stephanie laid her head back down, and Carson touched her arm.   She moved her arm away, but Carson touched her again.   Stephanie then lifted her head and remained awake to watch a movie on television.   When the movie ended, Carson got up from the floor, changed the television channel, and lay down in front of Stephanie.   Carson proceeded to turn his body toward Stephanie, pull down his pants, and expose himself to her.

The information charged Carson with nine counts of forcible lewd acts upon Serina, a child under the age of 14;  and one count of a lewd act upon Stephanie, a child 14 or 15 years of age.2

Carson moved to dismiss under section 1385 on the ground he was denied a speedy trial, but on April 14, 1993 the superior court denied his motion.   On April 29, 1993 Carson's jury trial commenced.

On May 14, 1993 Carson was found guilty of committing a lewd act on Stephanie (count 10) and not guilty of two counts of forcible lewd acts upon Serina.   The court declared a mistrial on the remaining six counts of forcible lewd acts upon Serina.

Carson entered a plea of guilty to committing a forcible lewd and lascivious act upon Serina (count 1) on June 15, 1993.

DISCUSSION

ICALJIC No. 10.42.5, Definition of Lewd and Lascivious Act

 Carson asks this court to reverse his conviction under section 288, subdivision (c) (count 10), because the trial court removed an essential element of the crime from the jury's consideration by defining a lewd or lascivious act according to the language of CALJIC No. 10.42.5 3 as “any touching” with the required intent.   He argues the jury should have been instructed according to the court's holding in People v. Wallace (1992) 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67, which defined a lewd and lascivious act as “any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire.   [Citation.]” 4  (Id. at p. 579, 14 Cal.Rptr.2d 67.)

In People v. Wallace, a jury found the defendant's attempt to persuade two 15–year–old girls to do a striptease while he videotaped them, a violation of section 288, subdivision (c).   The videotape showed innumerable touchings of the girls' bodies by the girls and their boyfriends.   The Court of Appeal for the Fifth District noted there was sufficient evidence to support a rational inference the defendant touched the girls in a lewd and sexual manner, because a touching for purposes of section 288 may be done by the child victim or by a third party on the child's own person at the instigation of the defendant.5  (People v. Wallace, supra, 11 Cal.App.4th at p. 574, 14 Cal.Rptr.2d 67;  see People v. Austin (1980) 111 Cal.App.3d 110, 113, 168 Cal.Rptr. 401.)   However, the court held the jury instructions on an essential element of the crime were erroneous in that they defined the crime as “any touching” of the body of the child with the required specific intent.6  (People v. Wallace, supra, 11 Cal.App.4th at p. 571, 14 Cal.Rptr.2d 67.)

The court first observed “[a] lewd act for purposes of section 288 requires a touching.”  (People v. Wallace, supra, 11 Cal.App.4th 568, 574, 14 Cal.Rptr.2d 67.)   The court, relying on previous cases, explained “a lewd or lascivious act is one which is sexually unchaste or licentious, suggestive of or tending to moral looseness, inciting to sensual desire or imagination, inclined to lechery, or tending to arouse sexual desire.”  (Id. at p. 574, 14 Cal.Rptr.2d 67, citing People v. Pitts (1990) 223 Cal.App.3d 606, 887, 273 Cal.Rptr. 757.)   The court then turned to the words of section 288 which, in relevant part, state:

“(a) Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions of sexual desires of that person or of the child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.

“․

“(c) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and the defendant is at least 10 years older than the child, shall be guilty of a public offense and shall be imprisoned in the state prison for one, two, or three years, or by imprisonment in the county jail for not more than one year.”  (Emphasis added.)

The Wallace court concluded the language of section 288 required the commission of a “lewd or lascivious act” separate and apart from the intent of the perpetrator and that the touching itself must be lewd or lascivious.   (People v. Wallace, supra, 11 Cal.App.4th 568, 578, 14 Cal.Rptr.2d 67.)   The court stated, “If this were not the law a defendant could be convicted for his or her thoughts, regardless of his or her deeds.”  (Id. at pp. 578–579, 14 Cal.Rptr.2d 67.)   Attempting to clarify the actus reus necessary for a violation of section 288, the court then offered its own definition of a lewd and lascivious act “as any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire.  [Citation.]  In sum, it is a sexual act.”  (Id. at p. 579, 14 Cal.Rptr.2d 67.)   The court went on to explain:

“The application of an objective standard to determine the commission of a lewd or lascivious sexual act is consistent with the requirement that in every crime there must exist a union or joint operation of act (the actus reus) and criminal intent or negligence (the mens rea).  [Citation.]   This reflects the general principle that a mere intention of the accused to commit a crime or his belief that he is committing a crime, does not give rise to criminal liability.   Apart from the mens rea, there must be some act or conduct in violation of law which itself is socially harmful.  [Citations.]”  (People v. Wallace, supra, 11 Cal.App.4th 568, 579–580, 14 Cal.Rptr.2d 67.)

The Wallace court concluded the “any touching” instruction which had been given removed “an essential element of the crime charged from the jury's consideration” resulting in “a denial of federal due process principles which require the prosecution to prove beyond a reasonable doubt every fact necessary to convict under the statute.  [Citation.]”  (People v. Wallace, supra, 11 Cal.App.4th 568, 580, 14 Cal.Rptr.2d 67.)   The court reviewed the error under the Chapman test.   In concluding the error was not harmless beyond a reasonable doubt, the court stated:

“Here, the trial court failed to instruct the jury that an essential element of the crime charged was that the defendant's touching of the victims had to be lewd and lascivious, regardless of his specific intent.   Further, the prosecutor misled the jury by arguing that ‘any’ touching, however innocuous, such as brushing a child's hair or touching a child's arm with the requisite specific intent would satisfy the statute.   Finally, the film showed many instances of touching of the victims' bodies by the defendant that were not lewd in nature but which the jury could have found to be lewd under the instruction given.”  (People v. Wallace, supra, 11 Cal.App.4th 568, 580, 14 Cal.Rptr.2d 67.)

A year later, in People v. Self (1993) 12 Cal.App.4th 1222, 16 Cal.Rptr.2d 67, the Court of Appeal for the First District, Division Five, reviewed the standard “any touching” definition of a lewd or lascivious act in the context of a claim the instructions for the felony contained in section 288 failed to provide adequate guidance for the jury and to distinguish it from the lesser included misdemeanor offense of annoying or molesting a child contained in section 647.6.

In Self the defendant touched his seven-year-old niece between her legs and moved his finger in circles while she lay on top of him.   The victim testified she could feel the defendant's “private” under the bedsheet.   The jury in Self was instructed on a violation of section 288 pursuant to the standard CALJIC instruction defining a lewd and lascivious act as any touching with the requisite intent.   The jury was also instructed on the lesser included offense of annoying or molesting a child, contained in section 647.6 which does not require any touching.  (See, e.g., People v. La Fontaine (1978) 79 Cal.App.3d 176, 144 Cal.Rptr. 729 [§ 647.6 may be violated by soliciting child to do a sexual act];  People v. Carskaddon (1959) 170 Cal.App.2d 45, 338 P.2d 201 [§ 647.6 may be violated by asking child if certain lewd acts have ever been performed on the child].) 7  The intent requirement also differs.   While “violation of section 288 ․ requires ‘the specific intent to arouse, appeal to or gratify the sexual desires of either party,’ ․ violation of section 647.6 requires only ‘an unnatural or abnormal sexual interest in the alleged child victim.’ ”  (People v. Self, supra, 12 Cal.App.4th 1222, 1225–1226, 16 Cal.Rptr.2d 67.)

The defendant in Self argued “that although Penal Code section 647.6 does not require a touching, some touchings may violate that statute without violating Penal Code section 288, subdivision (a), and [the given] instructions did not provide adequate guidance for the jury to determine whether a touching constituted the felony or the misdemeanor.”  (People v. Self, supra, 12 Cal.App.4th 1222, 1226, 16 Cal.Rptr.2d 67, emphasis in original.)

The Self court agreed with the defendant, finding his argument supported by Wallace and approved Wallace's proposed instruction “defining a lewd or lascivious act as a ‘sexual act,’ specifically ‘any touching of the body of a child which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire.’  [Citation.]”  (People v. Self, supra, 12 Cal.App.4th at p. 1226, 16 Cal.Rptr.2d 67.)   The Self court, however, held the error harmless under Chapman (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705).  (People v. Self, supra, at pp. 1226–1227, 16 Cal.Rptr.2d 67.)

Divisions One and Four of the First District have also adopted the Wallace definition in People v. Gaglione (1994) 26 Cal.App.4th 1291, 32 Cal.Rptr.2d 169 (instructional error held harmless particularly in light of the prosecutor's opening statement and closing arguments relying exclusively upon a clearly sexual act [touching of genitals] ) and People v. Filson (1994) 22 Cal.App.4th 1841, 1852, 28 Cal.Rptr.2d 335 (reversal on other grounds, direction that Wallace definition should be used in the event of a retrial).   The Second District, Division Five has rejected Wallace.   (People v. Marquez (1994) 28 Cal.App.4th 1315, 33 Cal.Rptr.2d 821.)

We agree with Wallace that section 288 requires a lewd and lascivious act, i.e., a “sexual” touching, in addition to the requisite intent.   The requirement of a lewd and lascivious touching, as noted by the court in Self, is a primary distinction between the felony contained in section 288 and the misdemeanor contained in section 647.6.   We, however, disagree with Wallace's conclusion the standard CALJIC instructions inadequately define a lewd or lascivious act as any touching done with the requisite intent or that an “objectively reasonable” person standard should be interjected into the definition of a lewd and lascivious act.

To begin with, we have difficulty with the standard itself.   The phrase “to an objectively reasonable person” is at best awkward.   Taken literally, it means “according to a reasonable person judged to be such by an objective standard applied by some other reasonable person.”   We doubt the Wallace court intended such a convoluted construction but rather meant to say “to a reasonable person applying objective standards.”   So stated, the problems with the Wallace standard and, particularly, with its unstated assumptions become more evident.   The jury is asked to determine what a reasonable person applying objective standards would find to be a “sexual” touching without regard to the actors' intents.   The reasonable person's age, sex, experience, education, sexual orientation, culture and ethnicity are not stated.   Nor are the objective standards by which the reasonable person is to make the judgment defined.   In context it seems the Wallace court's “reasonable person” and “objective” standards are simply another way of saying “mainstream” person and standards.   Two difficulties occur.   First, it is doubtful, given the variety of human sexual experience, that any “mainstream” fictional person's point of view and standards can be defined and consistently applied and second, even if that were possible, the application of such a standard would leave unsanctioned acts which the Legislature clearly intended be punished.

We turn to the words of the statute.  Section 288 prohibits “any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child․”  (Emphasis added.)   Part 1 of the Penal Code contains several sexual offenses involving clearly sexual activity such as intercourse and oral copulation, both those involving children and those involving force.8  Certainly, all of the offenses involve conduct which presumably an objectively reasonable person would find to be sexually indecent or tending to arouse sexual desire.   Notably, the Legislature did not limit the scope of section 288 to these clearly sexual offenses.   The Legislature stated these offense are included but do not define the limits of a “lewd or lascivious” act.

The words of the statute also indicate the prohibited touching is not limited to touchings on certain areas of a child's body;  the statute states the lewd or lascivious act can be committed “upon or with the body, or any part or member thereof.”   Accordingly, the courts have not limited the lewd or lascivious touching requirement of section 288 to genital touchings.  (See People v. Raley (1992) 2 Cal.4th 870, 907, 8 Cal.Rptr.2d 678, 830 P.2d 712;  People v. O'Connor (1992) 8 Cal.App.4th 941, 947, 10 Cal.Rptr.2d 530.)   The section has been found violated by rubbing the stomach of a seven year old (People v. Dontanville (1970) 10 Cal.App.3d 783, 796, 89 Cal.Rptr. 172), requiring a child to drink urine (People v. Pitts, supra, 223 Cal.App.3d at p. 887, 273 Cal.Rptr. 757), or requiring a child to undress (People v. Mickle (1991) 54 Cal.3d 140, 175–176, 284 Cal.Rptr. 511, 814 P.2d 290;  People v. Austin, supra, 111 Cal.App.3d at pp. 114–115, 168 Cal.Rptr. 401).   Thus, the language of section 288 indicating it is neither limited to the commission of other sexual offenses contained in the Penal Code nor limited to genital or other “sexual” areas of the body reveals a legislative intent to encompass the broadest range of lewd and lascivious acts within the scope of the statute.   The language of the statute does not support limiting the conduct only to sexual conduct which an objectively reasonable person would find to be “sexually indecent” or “tends to arouse sexual desire.”

We believe Wallace's interjection of an objectively reasonable person standard results in an unduly restrictive view of sexual behavior and what is a lewd or lascivious act.   Sexual behavior encompasses a wide variety of conduct.   As the court stated in People v. Austin, supra, 111 Cal.App.3d 110, 115, 168 Cal.Rptr. 401, “The range of proscribed potentially harmful acts [under section 288] is limited only by the imagination of the perpetrator.”  Wallace limits section 288 to the imagination of an objectively reasonable person.   An objectively reasonable person standard excludes behavior which appears to be neither sexual nor indecent because the behavior is so “imaginative,” so sexually deviant, that an objectively reasonable person would not perceive it to be sexual.   That same behavior would likely also fail to meet Wallace's “tends to arouse sexual desire test” to an objectively reasonable person since if an objectively reasonable person would not view the behavior as sexual he or she would also not be inclined to view the behavior as tending to sexually arouse.   Yet, the behavior may have been intended and perceived by the victim to be sexual.   Under Wallace, the fact that touching was intended and perceived as lewd and lascivious would not merit conviction unless the conduct also met Wallace's objectively reasonable person standard.   The statute, however, was intended to encompass a very broad view of lewd and lascivious acts and not a limited view restricted to acts deemed sexual under an objective, reasonable person standard.

 Second, Wallace's aim of distinguishing between “innocuous” and “lewd or lascivious” touchings is not furthered by adoption of an objectively reasonable person standard.   Whether a touching is “sexual” or “innocuous” necessarily depends upon intent, not the sexual standards of an objectively reasonable person.   Conduct which may be innocuous given one intent may be lewd or lascivious given a sexual intent.   For example, in Wallace, the court found the instructional error was not harmless partially on the basis the prosecutor “misled the jury by arguing that ‘any’ touching, however innocuous, such as brushing a child's hair or touching a child's arm with the requisite specific intent would satisfy the statute.”  (People v. Wallace, supra, 11 Cal.App.4th 568, 580, 14 Cal.Rptr.2d 67.)   This statement, implying that brushing a child's hair could never constitute a lewd and lascivious act, naively ignores the possibility that a particular individual might find a child's hair to be sexually arousing and seek sexual stimulation and gratification by brushing that hair.9  It ignores the possibility a child's arm might be sexually stimulating to another individual or that a touching of the arm might be the beginning of the sexual advance on a child.10

Some touchings which might appear “sexual” at first glance, may be “innocuous” because of the intent behind the touching while other touchings which first might appear “innocuous” may be “sexual” because of the intent.   For example, an adult undressing a child is innocuous when the intent is to get the child ready for a bath and is lewd when the intent is to film the child to gratify sexual urges.   Rubbing a child's genital area is innocuous when the intent is to bathe the child but is lewd when the intent is to sexually stimulate the child.   The act or touching cannot be viewed separately from the intent using an objective standard;  intent and act must be considered together to effect the purpose of the statute.

The Fifth District, which decided Wallace, aptly stated in an earlier case:  “Virtually any act can fit this description [of a lewd or lascivious act], depending upon the intent with which it is done.”  (People v. Pitts, supra, 223 Cal.App.3d 606, 887, 273 Cal.Rptr. 757 [affirming conviction under § 288 for forcing child to drink urine].)   We believe the court in Wallace erred when it rejected this statement as dicta and an inaccurate statement of the law.  (People v. Wallace, supra, 11 Cal.App.4th 568, 577–579, 14 Cal.Rptr.2d 67.)

A standard which focuses on intent to determine whether a touching is lewd and lascivious has been the guiding principle for decades.   As the court explained over 40 years ago in People v. Hobbs (1952) 109 Cal.App.2d 189, 192, 240 P.2d 411:

“In all cases arising under [section 288] the purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done.   In People v. Owen, [ (1945) ] 68 Cal.App.2d 617, 620, 157 P.2d 432, it is said that ‘It is not the accomplishment but the intent of the party that is the basis of the commission of the acts condemned in Penal Code section 288.’   If intent of the act, although it may have the outward appearance of innocence, is to arouse, or appeal to, or gratify the lust, the passion or the sexual desire of the perpetrator it stands condemned by the statute, or, if it is intended to arouse feelings of passion or sexual desire in the child, it likewise stands condemned.”  (Emphasis differs from original.)

This language from Hobbs has been repeated by the courts, including the Fifth District, in the intervening decades.  (People v. Marquez, supra, 28 Cal.App.4th 1315, 1322, 33 Cal.Rptr.2d 821;  People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380, 7 Cal.Rptr.2d 660 [Sixth Dist.];  People v. Pitts, supra, 223 Cal.App.3d 606, 887, 273 Cal.Rptr. 757;  People v. Meacham (1984) 152 Cal.App.3d 142, 156, 199 Cal.Rptr. 586 [Second Dist., Div. Three];  People v. Austin, supra, 111 Cal.App.3d 110, 115, 168 Cal.Rptr. 401 [Fifth Dist.];  People v. Nothnagel (1960) 187 Cal.App.2d 219, 225, 9 Cal.Rptr. 519 [Second Dist., Div. One].)   We believe Hobbs correctly states the law.   Intent is critical in determining whether a lewd and lascivious act has occurred.

 Further, we disagree with Wallace's suggestion that the definition of a lewd or lascivious act as any touching with the requisite intent punishes an individual “for his or her thoughts, regardless of his or her deeds.”   (People v. Wallace, supra, 11 Cal.App.4th at pp. 578–579, 14 Cal.Rptr.2d 67.)   Rather, it allows a jury to convict a defendant for carrying his or her thoughts a crucial step beyond that which society has deemed permissible, i.e., the actual use of a child for purposes of sexual stimulation or gratification.   Under the standard instructions, a defendant is not punished merely for his thoughts;  intent alone is not sufficient, there must also be a touching.11

 Finally, we believe the Wallace definition is at odds with the purpose behind section 288.  “Section 288 of the Penal Code was enacted to protect children from the lustful advances and tamperings of callous and unscrupulous persons as well as from the assaults of depraved unfortunates.”  (See People v. Hobbs, supra, 109 Cal.App.2d 189, 192, 240 P.2d 411.)12  The purpose of section 288 is not merely “to punish individuals for violating the moral standards of the community, but also to protect infants and children from lewd and lascivious assaults.   [Citations.]”  (Allstate Ins. Co. v. Kim W. (1984) 160 Cal.App.3d 326, 332, 206 Cal.Rptr. 609.)   This protection is extended to children regardless of the fact the victim may have consented or perceived any harm from the conduct or that the defendant believed the victim was over the age of 14.  (See People v. Marquez, supra, 28 Cal.App.4th 1315, 1322–1323, 33 Cal.Rptr.2d 821;  People v. Toliver (1969) 270 Cal.App.2d 492, 496, 75 Cal.Rptr. 819.)

The Wallace court's definition shifts section 288's emphasis away from the protection it was intended to afford children.   The Wallace interjection of an objectively reasonable person standard focuses on the general moral standards of the community at the expense of protecting children from adults seeking to use them for sexual gratification.  Wallace's standard limits the protection of section 288 to only those acts which an objectively reasonable person would find to be sexual, regardless of whether the defendant's actual conduct was intended and perceived by the victim to be a sexual assault.  Section 288 was not enacted in order to protect children from objectively reasonable people;  such people do not seek sexual gratification from children.13  Rather, section 288 is designed to protect children from the unreasonable, sexually deviant person, from any touching committed with the requisite sexual intent.

In sum, we reject Wallace's proposed alteration of the standard instructions defining a lewd or lascivious act under section 288.   We believe the court correctly defined the term for the jury in this case by using the standard CALJIC instructions defining a lewd or lascivious act as any touching with the requisite specific intent.

II

CALJIC No. 2.90, Definition of Reasonable Doubt

 Carson contends the trial court's use of CALJIC No. 2.90 14 violated his constitutional right to due process, because the instruction included the assertedly confusing terms of “moral certainty” and “moral evidence.”   However, the United States Supreme Court has recently held the use of these terms in the context of the instruction as a whole is not unconstitutional.  (Victor v. Nebraska (1994) 511 U.S. 1, –––– – ––––, 114 S.Ct. 1239, 1242–1250, 127 L.Ed.2d 583.)

III

Speedy Trial

Carson contends the trial court erred by denying his motion to dismiss based on pre-information delay.   Carson argues he was prejudiced by a delay of nearly 17 months between the filing of the felony complaint and his arraignment.

Investigation of child molest charges against Carson began in May 1991.   On August 21, 1991 federal authorities arrested Carson on marijuana charges and took him into federal custody in Los Angeles.   On August 27, the felony complaint in this matter was filed against Carson in San Diego Municipal Court.

On December 30, 1991 the San Diego Marshal's Office mailed a certified copy of the warrant issued for Carson's arrest to the Metropolitan Correctional Center in Los Angeles and requested the warrant be placed as a detainer.   On December 31, 1991 the San Diego District Attorney's Office requested temporary custody of Carson pursuant to the Interstate Agreement on Detainers.  (§ 1389 et seq.)   A copy of this letter was mailed to Carson.

Carson wrote a letter to the investigating detective, postmarked January 6, 1992, concerning the pending investigation in San Diego.   However, the letter contains no indication Carson was specifically aware a complaint had been filed.

On May 22, 1992 the federal authorities sentenced Carson to 78 months in federal custody.   The Federal Bureau of Prisons notified the San Diego Marshal's Office on September 2, 1992 it was aware of the pending charges against Carson.   At the time, Carson was incarcerated in the Federal Correctional Institution in Fort Worth, Texas.   On September 22, 1992 the San Diego Marshal's Office was informed Carson had been transferred to Sheridan, Oregon, and the detainer notification request had been forwarded to that location.   Then on October 7, 1992 the Federal Bureau of Prisons informed the San Diego Marshal's Office a detainer against Carson had been filed.

The San Diego District Attorney's Office directed a Request for Temporary Custody of Carson to the warden of the Federal Correctional Institution in Sheridan on October 22, 1992.   Enclosed was an unsigned copy of the Prisoner's Agreement to Temporary Transfer of Custody and an Explanation of Inmate's Rights.   A copy of each was sent to Carson.

In a letter dated November 23, 1992 the Federal Bureau of Prisons notified the San Diego District Attorney's Office Carson would be available for custody on December 21, 1992 and enclosed a copy of an Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints signed by Carson.

Carson was transported from Sheridan to San Diego on January 20, 1993 and was arraigned the next day.   A preliminary hearing was held on February 22, 1993, and an information was filed on March 3, 1993.

The trial court denied Carson's motion to dismiss based on pre-information delay on April 14, 1993.

The court found the length of the delay raised a presumption of prejudice, but denied Carson's motion because it concluded the prosecution moved as expeditiously as possible under the Interstate Agreement on Detainers.   Moreover, the court found Carson did not show the delay caused any actual prejudice.   The court also had doubts as to Carson's ignorance of the complaint filed in San Diego.   The factual matter of whether Carson's letter to the investigating police officer in January proved he was unaware of the complaint was not resolved by the court.

 The Sixth Amendment of the United States Constitution and article 1, section 15 of the California Constitution guarantee an accused the right to a speedy trial.   The federal speedy trial right is triggered when the defendant is accused—when a formal indictment or information is filed, or the defendant is arrested.  (United States v. Marion (1971) 404 U.S. 307, 318–320, 92 S.Ct. 455, 462–63, 30 L.Ed.2d 468.)   In California the right attaches when the criminal complaint is filed and thus covers pre-arrest delay.   (People v. Hannon (1977) 19 Cal.3d 588, 608, 138 Cal.Rptr. 885, 564 P.2d 1203.)

The Supreme Court has explained the speedy trial right is intended to prevent oppressive pretrial incarceration, minimize an accused individual's anxiety and concern and limit possible impairment of the defense.  (Barker v. Wingo (1972) 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101.)   The court has explained:

“Inordinate delay between arrest, indictment, and trial may impair a defendant's ability to present an effective defense.   But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused's defense.   To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime.   Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”  (United States v. Marion, supra, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468.)

 Once the constitutional right attaches, the courts evaluate asserted violations by a four-part test developed by the United States Supreme Court in Barker v. Wingo, supra, 407 U.S. 514, 530–532, 92 S.Ct. at 2191–93.   First, the courts look at the length of delay.  “The length of the delay is to some extent a triggering mechanism.   Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”  (Barker v. Wingo, supra, 407 U.S. 514, 530, 92 S.Ct. at 2192.)   Courts have indicated a delay of over one year tends to trigger judicial review of a speedy trial claim.  (See Stabio v. Superior Court (1994) 21 Cal.App.4th 1488, 1498, 26 Cal.Rptr.2d 615;  People v. Vila (1984) 162 Cal.App.3d 76, 85–86, 208 Cal.Rptr. 364 [delay of four years, citing cases involving delays of six to twelve months];  compare People v. Johnson (1980) 26 Cal.3d 557, 566, fn. 6, 162 Cal.Rptr. 431, 606 P.2d 738 [delay of 144 days does not trigger constitutional speedy trial review].)

 Second, the courts examine the justification for the delay.   The courts assign different weights to this factor.

“Barker made it clear that ‘different weights [are to be] assigned to different reasons' for delay.  [Citation.]  Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.   And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows.   Thus, our toleration of such negligence varies inversely with its protractedness, [citation], and its consequent threat to the fairness of the accused's trial.”  (Doggett v. U.S. (1992) 505 U.S. 647, ––––, 112 S.Ct. 2686, 2693, 120 L.Ed.2d 520.)

Delay may also be attributed to the defendant as when he flees the jurisdiction to avoid trial (see People v. Perez (1991) 229 Cal.App.3d 302, 308, 279 Cal.Rptr. 915 [held defendant waived speedy trial right by fleeing jurisdiction] ) or is standing trial in another jurisdiction (see People v. Hill (1984) 37 Cal.3d 491, 497, 209 Cal.Rptr. 323, 691 P.2d 989;  Blake v. Superior Court (1980) 108 Cal.App.3d 244, 251–252, 166 Cal.Rptr. 470).

 Third, the courts look to see whether the defendant asserted his right to a speedy trial.   The Barker court explained:  “The defendant's assertion of his speedy trial right ․ is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.   We emphasize that a failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”  (Barker v. Wingo, supra, 407 U.S. 514, 531–532, 92 S.Ct. at 2192–93.)  “Even when the government can offer no good reason to justify the delay, in a given case the defendant's own conduct may defeat his claim.”  (Ogle v. Superior Court (1992) 4 Cal.App.4th 1007, 1021, 6 Cal.Rptr.2d 205.)   Under this factor, the courts examine when the defendant became aware of the pending charges.  (See Stabio v. Superior Court, supra, 21 Cal.App.4th 1488, 1494, 1497, 26 Cal.Rptr.2d 615.)

 Finally, the court looks to whether the defendant was actually prejudiced by the delay.   In considering prejudice, the courts, inter alia, consider whether the defendant had early knowledge of the charges pending against him.  (See Ogle v. Superior Court, supra, 4 Cal.App.4th 1007, 1019–1021, 6 Cal.Rptr.2d 205;  Gottlieb v. Superior Court (1991) 232 Cal.App.3d 804, 812, 283 Cal.Rptr. 771.)   In certain limited circumstances, when the delay has been inordinately long, the government has acted negligently or in bad faith, the defendant was ignorant of the charges in the interim and timely asserted his speedy trial right, the defendant will be excused from showing actual prejudice.  (See Doggett v. U.S., supra, 505 U.S. 647, ––––, 112 S.Ct. 2686, 2694 [eight-year delay];  U.S. v. Shell (9th Cir.1992) 974 F.2d 1035 [five-year delay];  Stabio v. Superior Court, supra, 21 Cal.App.4th 1488, 26 Cal.Rptr.2d 615 [four-year, one-month delay];  contrast U.S. v. Beamon (9th Cir.1993) 992 F.2d 1009 [showing of actual prejudice required for delays of 17 and 20 months].)

 Here, the trial court found there was a 17–month delay which was presumptively prejudicial, thus triggering review of Carson's speedy trial claim.   This delay was not significantly longer than the one-year period generally triggering review.  (See U.S. v. Beamon, supra, 992 F.2d 1009, 1014.)

Second, the cause of the delay was attributable to Carson;  to his arrest and trial on federal charges.   Carson was in federal custody before the felony complaint issued and was not available for transfer from federal custody to San Diego until December 21, 1992.   The trial court found the government acted with due diligence in bringing Carson to trial given the limitations of the Interstate Agreement on Detainers (§ 1389) which governs transfers of individuals from the custody of one jurisdiction to another for the purposes of trial.   Under the Interstate Agreement, Carson was not available for transfer from federal custody to San Diego while he was a pretrial detainee within the federal system nor until he reached the institution within the federal system where he began serving his federal sentence.  (See People v. Garner (1990) 224 Cal.App.3d 1363, 1369, 274 Cal.Rptr. 298.)   Carson became available for transfer to San Diego in December 1992.   He makes no argument that the delay between the transfer and the beginning of his trial in April 1993 involved any negligence or bad faith by the government.   Carson does not argue this delay was prejudicial.   Further, we note trial commenced within the time periods outlined in the Interstate Agreement for prisoners brought from one jurisdiction to another jurisdiction for trial.  (See People v. Garner, supra, 224 Cal.App.3d 1363, 1367, 274 Cal.Rptr. 298.)

 Finally, the record supports the trial court's finding there was no actual prejudice.   Below, Carson argued he was prejudiced because Serina was unable to remember talking with a police officer and therefore Carson was unable to examine Serina on her prior statement made to the officer.   On appeal, Carson argues he met the burden of showing the delay had a prejudicial impact on Serina's memory:

“Serina testified at the time of the preliminary hearing and again at trial that she had placed the matter at the back of her mind due to the length of time it took to prosecute the case.   For example, at the time of the preliminary hearing, she could not recall if the first molestation occurred in 1986 or 1987.   She could not recall if an incident in her mother's bedroom was in the winter, spring, summer or fall or what month it happened.   She did not recall how old she was in incident in apartment 110.   It was not clear in her mind how old she was at the various times appellant had allegedly molested her.   Serina [T.] could not recall what she talked to Officer Maureen Lajes about at school.   Or how many times she had spoken with Lajes.   She did not recall if she had spoken with any other female police officers.

“The reason Serina [T.] provided for her being unable to recall key information clearly demonstrated the prejudicial impact of the delay:

“Because I put everything way in the back of my mind after the very beginning of the case and no action was being taken.”  (Citations to record omitted.)

The trial court found no actual prejudice, explaining “that very frequently, the victims, particularly young victims such as we had here, don't have all that good a memory.  [¶] [Y]ou don't have all that good a memory even where there's a timely preliminary hearing․”  The trial court was entitled to conclude, as a factual matter, that Serina's memory loss was not due to the delay and thus Carson was not prejudiced.

Moreover, we note Carson's claim of prejudice is based on the memory loss of a prosecution witness.   As the Supreme Court has observed,

“The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused.   In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused․

“․

“A second difference between the right to speedy trial and the accused's other constitutional rights is that deprivation of the right may work to the accused's advantage.   Delay is not an uncommon defense tactic.   As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade.   If the witnesses support the prosecution, its case will be weakened, sometimes seriously so.   And it is the prosecution which carries the burden of proof.   Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.”  (Barker v. Wingo, supra, 407 U.S. 514, 519–521, 92 S.Ct. at 2186–87, fns. omitted.)

As the Supreme Court pointed out in Barker v. Wingo, a prosecution witness's faded memory may actually work to the defendant's advantage.   During closing argument, Carson argued Serina was lying.   Serina's inconsistencies and inability to recount details were factors Carson could have used to support his argument she was lying.

Finally, we note that Carson had early notice of the pending charges.   San Diego officials mailed Carson a copy of a letter requesting temporary custody for the purpose of trial in December 1991.   At the speedy trial hearing, Carson argued he had not received this letter and supported his claim with a letter he wrote January 6, 1992 to a San Diego police detective which did not refer to notice of the charges.   This letter, however, did indicate Carson was aware of the investigation and had contemplated his defense.   This early notice mitigates against a finding of prejudice, particularly in a case of this type where it is essentially the victim's word against the word of the accused.

No reversal is required on the basis Carson was denied his right to a speedy trial.

IV

Petition for Writ of Mandate or Habeas Corpus

Carson seeks a writ of mandate compelling the superior court to issue a certificate of probable cause so that he may appeal his guilty plea on the ground it was not voluntarily entered.   Alternatively, Carson asks us to treat his petition as one for habeas corpus.

On June 15, 1993, Carson pleaded guilty to forcibly molesting Serina in exchange for the dismissal of the balance of the charges with a stipulated low term of three years to be served concurrently with the three-year term for the molesting conviction and to be served consecutively to his federal prison term.   Carson signed a change of plea form acknowledging his attorney had explained possible consequences of his plea including it was “priorable” and could be considered as a felony prior.   He acknowledged the consequences of his plea could include four years of parole with up to one year return to prison for every parole violation.   He stated he pleaded guilty because “in truth and in fact” he was guilty.

At the hearing on his guilty plea, he was examined on the form.   Carson stated he had initialed and signed the form and the statements contained within the form were true.   Carson acknowledged he was pleading guilty pursuant to People v. West (1970) 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409—to avoid possible conviction and punishment on the other crimes which were dismissed pursuant to the plea agreement.   The court made certain Carson understood he would have a four-year parole term after he had served his sentence and that if he violated parole, he could be returned to state prison.   The court told Carson “this is a serious felony prior,” explaining:  “Once you are released from prison, you commit a new and different crime or you commit a crime in state prison that's designated in the Penal Code and this could be alleged, this felony, and if you're convicted of a new and different crime, this adds five consecutive years.”

Carson stated he was entering the plea freely and voluntarily and his counsel joined in Carson's waiver of his constitutional rights and entry of the guilty plea.

Following the entry of his guilty plea on June 15, 1993, the court sentenced Carson in accordance with the plea agreement.   The same day Carson filed a notice of appeal.   He did not obtain a certificate of probable cause to appeal his guilty plea.

On April 11, 1994, Carson filed a petition for writ of habeas corpus seeking to withdraw his guilty plea because it was not an informed and voluntary plea because it was made under duress and without knowledge of the possible consequences.

In a declaration attached to the petition, Carson stated he was in federal custody from August 21, 1991 to January 20, 1993 and was then in custody in an open dorm of the San Diego jail until July 9, 1993.   Carson stated while in the jail, he “became aware of the very hostile attitude inmates had towards other inmates having been charged with or convicted of child molestation.”   He witnessed one inmate rumored to be a child molester beaten until he was unconscious and was aware another inmate charged with child molestation was caught by other inmates in a stairwell where he was beaten, strangled and stabbed.   Carson stated he was both threatened and physically attacked by other inmates and “[t]hese incidents happened on almost on a daily basis and occurred during trial and also close in time to when [he] entered [his] guilty plea in this case.”

Carson stated he believed the only way to avoid more serious injury was to be transferred to federal custody where the other inmates would not know of his child molestation conviction and thus he would not have the same fears as he had in jail.   Carson explained why he pleaded guilty:

“My reason for entering a guilty plea on June 15, 199[3], was to escape the extreme danger which I believe surrounded me at the San Diego County Jail to the relative safety of federal custody.   When I indicated on the plea agreement that I had entered the plea voluntarily without threat or fear, I believed that paragraph to mean that I was not induced by direct threat or fear to enter into the plea.   I did not believe, nor did I intend, that this paragraph of the plea agreement included or referred to fear and threats I faced being housed in the general population at the County Jail following a conviction on child molestation charges.”

Carson went on to explain he didn't realize all the consequences of his guilty plea:

“At the time that I entered my guilty plea, I was so influenced by and concerned by fear of physical harm to myself if I continued to remain in custody at the county jail, I agreed to enter a guilty plea without having fully understood the consequences of my plea.   It was not until July 12, 1993, that I realized the impact of this violent felony conviction on my prior criminal history and on my custody level.   I also did not understand the parole, probation or monetary consequences of a conviction.   Finally, I was unaware of the fact that the trial court could deny credit for time in custody.”

We denied Carson's petition for habeas corpus.   We stated:

“Had [Carson] properly appealed from the judgment of conviction on his guilty plea, he would have had to obtain a certificate of probable cause from the trial court.  (Pen.Code, § 1237.5.)   The record does not reflect that he did so.   There is further no matter asserted in the petition that was not known by July 12, 1993, and no apparent reason why no effort was made to obtain a certificate to preserve the issue for appeal.

“Habeas corpus will not, as a general rule, lie where there is a remedy by appeal and such a remedy is expressly provided here by Penal Code section 1237.5.  (In re Brown (1973) 9 Cal.3d 679, 682–683, 108 Cal.Rptr. 801, 511 P.2d 1153.)  ‘To entertain [habeas corpus] proceedings would render without legal effect the provisions of section 1237.5 and frustrate its declared purpose of eliminating from appellate channels those appeals which are clearly “frivolous and vexatious.” ’  (In re Brown, supra, 9 Cal.3d at p. 683, 108 Cal.Rptr. 801, 511 P.2d 1153.)   As such, the petition is denied.   The denial is without prejudice to any later motion defendant may make to supplement the record with a certificate of probable cause and properly raise the issue.”

After denial of his petition, Carson sought a certificate of probable cause.   Carson's attorney, in a declaration, explained she had filed the habeas petition “[o]n April 11, 1994, following receipt of information as to the circumstances surrounding Mr. Carson's plea of guilty․”  She recounted Carson's declaration (which was also attached) and that she had unsuccessfully petitioned the California Supreme Court for review (Justice Mosk being of the opinion the petition should be granted).

 The superior court denied Carson's application for a certificate of probable cause the basis there was “no cognizable issue on appeal.”   Carson seeks review of this ruling.

Section 1237.5 governs certificates of probable cause for appealing following a guilty plea.   In pertinent part, it provides:

“No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty ․ except where both of the following are met:

“(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.

“(b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.”

The purpose of section 1237.5 “is to weed out frivolous or meritless appeals.  [Citation.]”  (People v. Manriquez (1993) 18 Cal.App.4th 1167, 1171, 22 Cal.Rptr.2d 779, fn. omitted.)  “[T]he test that must have been intended to apply is whether the appeal is clearly frivolous and vexatious or whether it involves an honest difference of opinion.  [Citations.]”  (People v. Ribero (1971) 4 Cal.3d 55, 63, fn. 4, 92 Cal.Rptr. 692, 480 P.2d 308.)   “Where a certificate of probable cause has been denied on the merits the remedy is to seek review of the propriety of the denial.   On a timely application therefor, the writ of mandate lies.  [Citation.]”  (In re Brown (1973) 9 Cal.3d 679, 683, 108 Cal.Rptr. 801, 511 P.2d 1153.)

Here, Carson's application for a certificate of probable cause raised two bases for challenging his guilty plea:  (1) his plea was involuntarily because he entered the plea as a result of fear of remaining in the San Diego county jail as a convicted child molester and (2) he was unaware of all the consequences of pleading guilty at the time he entered his plea.

Initially, we note Carson's declaration indicates he was aware of these bases for appeal within the time required for obtaining a certificate of probable cause but apparently his counsel did not learn of these bases until many months later.   It appears, the delay was occasioned by Carson's failure to inform his counsel of the purported grounds for appeal and was not due to any omission by his counsel.   Carson provides no excuse for failing to raise the issue earlier.   His failure to timely raise these bases within the appeal period supports a denial of his petition for a writ of mandate.

Further, we find Carson's grounds for appeal (essentially seeking to withdraw his guilty plea) are without merit.

“ ‘The plea of guilty constitutes an admission of every element entering into the offense charged, and constitutes a conclusive admission of defendant's guilt.  [Citation.]’ ”  (People v. Nance (1991) 1 Cal.App.4th 1453, 1456–1457, 2 Cal.Rptr.2d 670;  People v. Guerrero (1993) 19 Cal.App.4th 401, 407–410 and fn. 4, 23 Cal.Rptr.2d 803.)  “ ‘Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea.’ ”  (People v. Hunt (1985) 174 Cal.App.3d 95, 102–103, 219 Cal.Rptr. 731.)  “A plea may not be withdrawn simply because the defendant has changed his mind.  [Citation.]”  (People v. Nance, supra, 1 Cal.App.4th 1453, 1456, 2 Cal.Rptr.2d 670.)   Withdrawal of a guilty plea may be denied “where the defendant acted with knowledge of the facts and on advice of his counsel.  [Citations.]”  (People v. Griffin (1950) 100 Cal.App.2d 546, 548, 224 P.2d 47;  People v. Alexander (1955) 130 Cal.App.2d 529, 531, 279 P.2d 128.)

Carson argues he should be allowed to withdraw his guilty plea because he was “so influenced by and concerned by fear of physical harm to [himself] if [he] continued to remain in custody at the county jail, [he] agreed to enter a guilty plea without having fully understood the consequences of [his] plea.”   Carson contends he did not understand the parole, probation or monetary consequences of a conviction.

 Carson's declaration does not establish good cause for withdrawal of his guilty plea.   As noted above, by pleading guilty, Carson admitted “ ‘every element entering into the offense charged’ ” and his plea “ ‘constitutes a conclusive admission of [his] guilt.’  [Citation.]”  (People v. Nance, supra, 1 Cal.App.4th 1453, 1456–1457, 2 Cal.Rptr.2d 670.)   Carson does not disavow his admission of guilt.   Nowhere in his declaration does he contend that he was not guilty of the offense nor claim he had a viable defense.   Carson does not contend that he would have received a more favorable disposition had he proceeded to trial.   Thus, we have a record which shows Carson pleaded guilty because he was guilty and which further shows he received the disposition he bargained for.   The fact Carson's guilty plea may have been motivated by other factors beyond his guilt of the offense and a favorable plea agreement (i.e., his observations of the treatment of convicted child molesters in the San Diego jail) does not establish his plea was involuntary nor show good cause for withdrawing his plea.

As to Carson's claim he entered the guilty plea without fully understanding the consequences of his plea, i.e., the parole, probation or monetary consequences of his conviction, this claim is clearly frivolous.   The record clearly shows Carson was given all the necessary advisements before he pleaded guilty, both in the change of plea form and in court.   He was specifically informed of parole consequences, ineligibility for probation and restitution requirements.

DISPOSITION

The judgment is affirmed and the petition denied.

I concur with the affirmance of the judgment of conviction.   However, I believe the majority's thoughtful, and eloquent, analysis of the issue concerning the propriety of CALJIC No. 10.42.5, as given in this case, does not come directly to grips with the “plain language” analysis in People v. Wallace (1992) 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67.   Although I agree the suggested Wallace alternative is not particularly helpful,1 merely pointing to its defects does not respond to Carson's argument the jury need be advised the lewd and lascivious act element of Penal Code 2 section 288, subdivision (c) must be established separate and apart from the perpetrator's intent.  (See People v. Self (1993) 12 Cal.App.4th 1222, 16 Cal.Rptr.2d 67.)

Nor can the Wallace analysis be dismissed by suggesting the grotesque, repeated physical violent acts attributed to “Mr. R.” by Kaplan (see majority opinion, fn. 8) can be equated to the brushing of a child's hair or touching of an arm alluded to in Wallace.   And the fact that “a touching of the arm might be the beginning of a sexual advance on a child” as the majority states, begs the issue.   Certainly, the Wallace analysis is not in disagreement.   That analysis is not predicated on the premise that touchings which are commonly accepted as nonsexual may never be preliminary to sexual arousal under certain circumstances.   Instead, Wallace directly addresses the plain language of section 288 which separately identifies two elements required for that crime:  A lewd and lascivious act and a specific intent to arouse, appeal to or gratify sexual passions or desires.3

In any event, even if there was instructional error, it is harmless beyond reasonable doubt on this evidence.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   Here, Carson commenced stroking the back of a sleeping 13–year–old girl only to guiltily jerk his hand away when she awoke and found him lying on the floor next to her futon.   As soon as she again reclined, he began touching her, only ceasing when she moved, repulsing these contacts.   The conduct of this older man, Carson, in lying down beside Stephanie and commencing the uninvited rubbing of the sleeping girl is an act which under the circumstances is objectively lewd and lascivious.   That is, a jury could not reasonably fail to find it to be objectively deviant activity “inciting to sensual desire or imagination” or “tending to arouse sexual desire” (Webster's New Internat. Dict. (3d ed. 1986) partially defining “lewd” as quoted in People v. Marquez (1994) 28 Cal.App.4th 1315, 33 Cal.Rptr.2d 821), thus satisfying any requirement of an objectively lewd and lascivious act.

The intent with which Carson committed the crime was graphically established by testimony that shortly following this event he stood up, changed the channels on the television, turned toward the girl, pulled his pants down and exposed himself.   Moreover, the jurors heard testimony from another young girl of repeated earlier sexual acts, including intercourse, which began with Carson accosting her in bed and rubbing her back.

Finally, Carson never argued below that the touching described by the girl were not lewd and lascivious, confirming his testimony to a denial that it ever occurred.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise indicated..  FN1. All statutory references are to the Penal Code unless otherwise indicated.

2.   Carson's motion to dismiss one count of a forcible lewd act upon Serina under section 1118.1 was granted.

3.   CALJIC No. 10.42.5 states in relevant part, “A lewd or lascivious act is defined as any touching of the body of the child [with the specific intent to arouse, appeal to, or gratify the sexual desires of either party.]”  (CALJIC No. 10.42.5 (1989 Rev.) 5th ed. 1988.)

4.   Since Carson's trial, CALJIC No. 10.42.5 has been amended to reflect both definitions of lewd or lascivious act and to allow the trial court to choose between the two.   It now states:  “A lewd or lascivious act is defined as any touching of the body of the child [with the specific intent to arouse, appeal to, or gratify the sexual desires of either party.]  [which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire.]”  (CALJIC No. 10.42.5 (1993 Rev.) 5th ed. 1988.)

5.   The court noted during the first segment of the tape one girl exposed her breasts and another girl pulled down a portion of her underpants while the defendant commented, “Are we loving this?”  “Do I get a better show?”;  “Jenny, take everything off!”;   and, “This is wonderful.”   During the second portion of the tape, defendant urged the girls, then dressed in bathing suits, to “get some clothes on and do a strip.”   The girls put on some clothing, and undressed down to their underwear with the boys' help “in a show-like atmosphere resembling a striptease.”  (People v. Wallace, supra, 11 Cal.App.4th 568, 575, 14 Cal.Rptr.2d 67.)   The court noted, “While this conduct might not be characterized as lewd or lascivious if performed by consenting adults, it reasonably could be viewed by a jury as such when performed by 15–year–old girls.   Simply put, this was not an innocuous filming of two teenagers changing their clothes before and after going swimming.”  (Id. at p. 575, 14 Cal.Rptr.2d 67.)

6.   The trial court in Wallace instructed the jury with the same version of CALJIC 10.42.5 as the trial court used here.

7.   Both People v. La Fontaine, supra, 79 Cal.App.3d 176, 144 Cal.Rptr. 729 and People v. Carskaddon, supra, 170 Cal.App.2d 45, 338 P.2d 201, involved section 647a which has since been renumbered to 647.6.

8.   See, e.g., section 261 (rape), section 261.5 (unlawful sexual intercourse with a person under age 18), section 266c (penetration by foreign object, oral copulation or sodomy when consent obtained through false or fraudulent representation or pretense intended to and causing fear in the victim), section 285 (incestuous fornication), section 286, subdivisions (b) and (c) (sodomy involving child under age 14), section 288a, subdivisions (b) and (c) (oral copulation with a child under age 14), section 289 (penetration with foreign object against the victim's will).

9.   For a description of a similar sexual obsession—hair cutting—we refer the reader to the case of Mr. R. described in Kaplan, Female Perversions, The Temptations of Emma Bovary (Doubleday 1991) pp. 145–154.

10.   For example, the first sexual touchings between adults may involve light touchings of the arm, exploratory touches clearly intended and understood by the individuals to have sexual overtones although the touching itself might not necessarily constitute a “sexual act” in the objective sense.   Compare, for example, this scene from Madame Bovary, after Leon has proclaimed his love for Madame Bovary, signals the beginning of a sexual relation:  “They were no longer speaking;  but as they looked at one another they felt a throbbing in their heads:  it was as though their very glances had set off a physical vibration.   Now they had clasped hands;  and in the sweetness of their ecstasy everything merged—the past, the future, their memories and their dreams.”   Leon suggests they begin an affair as he “gently finger[s] the blue border of her long white belt.”   (Flaubert, Madame Bovary (Random House 1957) p. 269.)

11.   We note that the standard CALJIC instructions require the touching be done with the requisite intent.   Another standard CALJIC instruction (No. 3.31) also informs the jury the need for concurrence of the act and the specific intent.   Thus, a defendant may not be punished for an innocent earlier touching (e.g., holding a child's hand for safety purposes when crossing a busy street) on the basis the defendant later decided to touch the child to gratify a sexual desire.   We note this lack of concurrence of touching and specific intent may explain the court's decision in People v. Webb (1958) 158 Cal.App.2d 537, 541–542, 323 P.2d 141, a case upon which Wallace relied.   In Webb, the court reversed a conviction under section 288 based on the defendant putting his arm around the victim's shoulder in order to guide the victim into a building where the defendant committed a lewd act.   The Webb court stated:  “Regardless of any intent which defendant might have had when he put his arm around the shoulder of the boy on their way to the bungalow, that act does not come within the meaning of ‘lewd’ or ‘lascivious.’   Placing one's arm around the shoulder of a boy under the circumstances present in this case cannot be said to be lustful, immoral, seductive or degrading.   The act took place in broad daylight before defendant and the boy had withdrawn to the privacy of the bungalow.”  (Id. at p. 542, 323 P.2d 141.)   The circumstances of the case suggest the defendant's intent in putting his arm around the boy's shoulder was not sexual but to guide the boy into the bungalow so that the defendant could accomplish a lewd and lascivious touching.

12.   See also People v. Camp (1919) 42 Cal.App. 411, 417, 183 P. 845, where the court stated:  “Section 288 is particularly directed to the prevention and punishment of lewd and lascivious conduct with and upon the bodies of children under fourteen years of age, because, as a rule, it may properly be assumed they are not sufficiently matured mentally to appreciate as fully as older persons the consequences to them, both morally and physically, of such acts of degeneracy, and they, therefore, generally have neither the judgment nor the physical power, which in such cases is often minimized where there is no developed mental power, to protect themselves against the perpetration upon them of such outrages which it is the object of this law to prevent, if it can be done, or to punish where such acts have been done.   Such crimes as the one denounced by section 288 are (we think experience shows to be true) ordinarily committed by persons of mature years or who at any rate are old enough to know that the inevitable tendency of conduct so abnormal and utterly diabolical is to corrupt the morals of children and to make them what the perpetrator of such a crime himself is.”

13.   We note there is something incongruous about asking the jury to judge the defendant's standard using an objective reasonable person standard when the conduct the jury is asked to review is, by its very nature, conduct which society has deemed objectively unreasonable, that is, engaging in sexual conduct with children.

14.   CALJIC No. 2.90 states in relevant part:“Reasonable doubt is defined as follows:  It is not a mere possible doubt;  because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt.   It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”  (CALJIC No. 2.90 (5th ed. 1988).)

1.   An arguably more accurate modification is suggested in People v. Sharp (1994) 29 Cal.App.4th 1772, 1794, 36 Cal.Rptr.2d 117.

FN2. All statutory references are to the Penal Code..  FN2. All statutory references are to the Penal Code.

3.   Section 288's definition effectively excludes sexually motivated acts, including touching of genitals, intended only to annoy or harass, although these touchings do constitute lewd and lascivious acts.   (See Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256, 158 Cal.Rptr. 330, 599 P.2d 636.)

KREMER, Presiding Justice.

BENKE, J., concurs.