Filed 4/14/14 P. v. Ramirez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JUVENTINO RAMIREZ,

Defendant and Appellant.

 B247131

 (Los Angeles County

 Super. Ct. No. GA084813)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Teri Schwartz, Judge. Affirmed.

David H. Goodwin, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson 

and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
2

Appellant Juventino Ramirez appeals his conviction of two counts of lewd 

acts upon a child in violation of Penal Code section 288, subdivision (a), one count 

of sexual penetration by a foreign object in violation of Penal Code section 289, 

subdivision (j), and one count of sexual penetration of a minor under the age of ten 

in violation of Penal Code section 288.7, subdivision (b).

1

 He contends the trial 

court erred in curtailing his cross-examination of the complaining witness and in 

giving CALCRIM No. 1110, which informs the jury that to violate section 288, 

subdivision (a), the touching at issue need not be done in a lewd or sexual manner 

if the defendant committed the act with the intent of arousing, appealing to or

gratifying the lust, passions, or sexual desires of himself or the child. Finding no 

reversible error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Information

Appellant was charged by information with two counts of sexual penetration 

by a foreign object (§ 289, subd. (j), counts one and six), two counts of a lewd act 

upon a child (§ 288, subd. (a), counts two and three), and two counts of sexual 

penetration of a minor under the age of ten (§ 288.7, subd. (b), counts four and 

five). Counts four and six were dismissed by the prosecution during trial.

B. Trial

1. Prosecution Evidence

J.C., who was nine at the time of trial, testified that in 2011, when she was 

eight, she was at her maternal grandparents’ house during the Labor Day weekend. 

 

1 Undesignated statutory references are to the Penal Code.
3

Appellant, his wife, and his daughter also lived in the home.

2

 On the day in 

question, appellant was babysitting J. and two younger girls. The three girls 

wanted to play in a backyard wading pool. The two other girls went to change and 

J. was alone in the dining room with appellant. He picked her up, put her on a 

chair, and placed his hand into her underpants. He rubbed her vagina and put his 

finger inside it. His actions hurt and scared J. After a few minutes, she pushed his 

shoulder and he stopped. Her vaginal area still hurt when she went to the 

bathroom later that day. She told her mother that she was in pain, but at first, said 

nothing about appellant’s actions. Sometime later, she told her mother that

appellant had touched her inappropriately. 

J. testified that a similar incident had occurred sometime earlier, when she 

was at her grandparents’ house watching television in the living room. Appellant 

was sitting on the sofa with her. They were alone. Appellant scooted close to her 

and put his hand in her pants and touched her vagina. That time, he circled his 

hand around, but did not insert anything inside her. After a few minutes, she 

pushed his hand away with a pillow. She did not tell her mother about that 

occasion. 

J.’s mother, Y.C., testified that on the Sunday before Labor Day she dropped 

J. off at her parents’ house early in the morning. Her parents often babysat J. while 

she worked and she was aware that they sometimes left J. in appellant’s care. 

When Y. returned to pick J. up, J. was playing in the wading pool. Other family 

members were also present. At some point, J. stated in front of everyone: “‘It 

hurts down there,’” pointing to her vaginal area. Y. thought being in the water for 

so long had caused irritation and did not ask her to elaborate. Later that night or 

the next night, when the two of them were having dinner at a restaurant, J. said 

 

2 Appellant was J.’s uncle by marriage. His wife was J.’s maternal aunt. 
4

something about not hurting that much anymore. Y. began to think J. was trying to 

communicate something and told her that if anyone touched her on her private 

parts she should say something. J. told Y. that appellant touched her. J. was 

clearly upset. They left the restaurant and continued the conversation at home, 

where J. gave more details about the Labor Day weekend incident, but did not tell 

Y. about the prior occasion. Y. called her husband and law enforcement officials. 

A deputy spoke to J. privately and subsequently informed Y. about the earlier 

incident. Y. decided not to have J. examined by a doctor because it would have 

been invasive. 

Detective Denise Fuchs testified that she interviewed J. in September 2011. 

J. told the detective that appellant put his finger inside her. On October 15, 2011, 

Y. placed a call to appellant at the instruction of the detective. The conversation 

was recorded. The transcript was received into evidence.

3 Y. began the 

conversation by telling appellant that J. had accused him of touching her 

inappropriately. Y. specifically stated that J. had said the Labor Day incident was 

the second time appellant touched her “down there.”4 She asked appellant to 

explain what happened. Appellant stated: “[N]othing bad happened. I did not 

touch her like . . . in other words, that you’re afraid that I may have hurt her or 

something . . . .” Y. asked him how he touched J. Appellant repeated that he 

touched her but “did not hurt her or anything.” He said he had not told his wife 

anything and wanted to talk to Y. about it personally. Appellant said he did not 

know how to repair his action or his fault and asked for help. Appellant said he did 

not “feel right with [Y.], nor the little girl for having touched her.” Y. threatened 

to tell her husband, and appellant said “the moment you talk to [your husband], I . . 

 

3

The conversation between Y. and appellant was in Spanish. The jury was 

provided a transcript with the original Spanish translated into English.

4 Y. inadvertently stated the most recent incident occurred on “Memorial Day.” 
5

. think I’ll be sent to the slammer.” He said he was sorry about what happened, 

asked for Y.’s forgiveness, and said: “if they take me in, well let them take me in.” 

He further stated he had been feeling “very bad, very bad,” and asked if she had in 

mind “filing a suit . . . .” 

2. Defense Evidence

The defense called Robert Whiteman, the sheriff’s deputy who interviewed

J. in early September 2011, the same night she reported the Labor Day weekend 

incident to her mother. He testified J. had said nothing about being placed on a 

chair and, in response to the deputy’s question, denied being “penetrated with an 

object . . . .”

The defense also called several family members and a friend who frequently 

socialized with appellant and his family. Adriana Ramirez-Guzman, appellant’s 

sister-in-law, who had two teen-aged daughters and one young son, testified 

appellant appeared to be a faithful and loving husband and father and that she had 

never seen appellant do anything improper around children. She had no concern 

about letting him be around her daughters. Juaquin Gonzalez, who had four 

daughters, testified that appellant had babysat his daughters in the past and he had 

never seen or heard nothing that would prevent him from having appellant watch 

them again. Manuela Ramirez, appellant’s sister, testified she saw J. in appellant’s 

presence and never saw anything to indicate J. was angry at him. She saw J. greet 

appellant affectionately at a party that took place in September 2011, several weeks 

after Labor Day. 

Appellant’s wife, Erika C., testified that they had a normal and active sexual 

relationship and that she never saw appellant doing anything inappropriate with 

any child. On cross-examination, she was confronted with a text she sent to Y. on 

October 16, 2011. The text stated Erika had “just found out,” “fe[lt] really bad,” 
6

and “d[id]n’t even have the courage to face you.” It further stated: “Please, don’t 

hesitate when you make a decision on what you are doing because he’s my 

husband” and “I swear on the life of my babies that I didn’t know.” The text also 

stated that Erika wished her daughters had a different father and that she was not 

“going to defend . . . or excuse him.” At trial, Erika attempted to explain the texts 

by stating: “I didn’t apologize because I believe[d] that he did anything. I 

apologized because of the situation that we were all in . . . .” 

Appellant testified. He denied ever touching J.’s vagina and specifically 

denied touching her inappropriately on the day the three girls went swimming in 

the wading pool while he was babysitting. He testified that when Y. accused him 

of touching J. inappropriately in the telephone call of October 15, he thought she 

was referring to an occasion when he was washing his car and J. was nearby, trying 

to help. He got up suddenly when his daughter sprayed him with the hose and 

accidently pushed against J. He grabbed her hips or legs tightly to keep her from 

falling. He was afraid he might have bruised her and would be charged with 

“domestic violence.” He denied having any sexual interest in children. 

3. Rebuttal

The prosecution re-called Detective Fuchs who testified that when she 

interviewed J. about the Labor Day weekend incident, J. did not use the word 

“penetration.” J. said appellant rubbed her vaginal area with his fingers and she 

felt him slip one inside her and rub inside her. J. also said it hurt, causing a 

burning sensation. Detective Fuchs used her hands as a model of the area and J.

put her finger inside the part representing the vagina to demonstrate what she 

meant. 
7

C. Verdict and Sentence

The jury convicted appellant of one count of sexual penetration with a 

foreign object in violation of section 289, subdivision (j) as charged in count one, 

two counts of lewd acts upon a child in violation of section 288, subdivision (a) as 

charged in counts two and three, and one count of sexual penetration of a child 

under the age of ten in violation of section 288.7, subdivision (b) as charged in 

count five. 

The court sentenced appellant to a term of 18 years to life: 15 years to life 

for count five and three years for count three, to be served consecutively. The 

court imposed and stayed separate three-year sentences for counts one and two. 

Appellant filed a timely notice of appeal. 

DISCUSSION

A. Cross-Examination of J.

1. Background

In cross-examining J., the defense attorney used the reports of Deputy 

Whiteman and Detective Fuchs to establish that her statements to sheriff’s officials

were not entirely consistent with her testimony at trial. For example, he elicited 

from J. testimony that although she never told anyone about the first incident, she 

thought about it a lot before the second incident occurred. After counsel showed 

her Detective Fuch’s report, J. testified that she told the detective she had not 

thought about the first incident at all before the second occurred. Defense counsel 

also elicited testimony that the first incident lasted several minutes. He then asked 

J. if she remembered telling the detective the first incident lasted only a few 

seconds, and showed her the report to see if it refreshed her recollection. After 

reviewing the report, J. testified that she had said that to the detective and that she 
8

had not been truthful because she did not feel comfortable with the detective and 

was not thinking. 

Later in the cross-examination, defense counsel asked J. whether she had 

lied to the deputy who first interviewed her. J. said “I don’t know.” When counsel 

then asked whether she had been truthful with the officer, J. responded, “Yes.” 

Counsel asked if she recalled telling the deputy when describing the Labor Day 

weekend incident that appellant had not put anything inside her. She said she 

recalled this and said she responded as she did because she did not understand the 

deputy’s question.5 J. confirmed she had not mentioned appellant putting his 

finger inside her. When counsel asked if she did not mention it because she was 

confused or because it did not happen, the court sustained an “asked and 

answered” objection to that question and to two follow-up questions: whether she 

knew when she was lying and whether she lied to the deputy. 

Defense counsel moved to another topic. He asked whether J. told the 

deputy about being put on a chair. She could not recall. He began to show her the

deputy’s report to refresh her recollection, when the court asked for a sidebar. At 

the sidebar, the court asked: “Can we do this another way?” The court stated it 

was not “very comfortable with [counsel] reading [the reports] and then . . .

ask[ing] if that’s what she said” because it appeared that when J. read the report, 

she would say that it refreshed her memory and agree it accurately stated what she 

said. The court inquired whether counsel could just call the deputy. Counsel 

responded: “For this one I could. . . . That’s fine.” 

The court went on to explain that it had sustained prior objections because 

the witness was young, the events were traumatic, and the questions were 

intimidating. It appeared to the court that J. was “easily being led by what she 

 

5 As Deputy Whiteman later testified, he had asked J. whether she had “been 

penetrated with an object.” 
9

s[aw] on paper” and that her “capacity to remember” had been “somewhat . . .

impaired or . . . degraded over time.” The court suggested other ways of handling 

the cross-examination, such as asking the girl why she told the deputies something 

rather than asking her if she “lied.” Defense counsel stated: “I can perhaps ask her 

a few question about whether she lied . . . .” The court said “I don’t want to get in 

to whether she lied. Because what is going on is she reads what she told the 

detective. Whether she remembers it or not, she said, yes, she remembers. And 

then you say: Wasn’t that a lie? And I think it’s somewhat argumentative with her 

to do that because I think she is going to tell you that’s what she said whenever she 

reads it.” The court continued: “I don’t think a nine year old’s ability to remember 

back a year and a half ago is going to include the word ‘lie.’. . . I haven’t heard 

anything yet to suggest that we’re talking about a child that lied. I think the 

question is: Did she say that? Is that what she believe happened at the time?” 

Defense counsel said “okay” and stated that he was cognizant of the court’s duty to 

protect the witness. The court concluded by saying: “[L]et’s just be a little bit 

easier with the questions that involve lies and the reading [of] reports.” 

After the sidebar, defense counsel resumed his cross-examination of J. He 

asked further questions about the issue of penetration and whether her statements 

to the deputy were made when the incident was fresh in her memory, but did not 

attempt to confront J. with any further inconsistent statements she might have 

made to sheriff’s officials. He did, however, confront her with inconsistent 

testimony from the preliminary hearing about feeling comfortable with the deputy. 

Appellant contends the court violated his fundamental right under our state 

and federal constitutions to confront witnesses by restricting his cross-examination 

of J. For the reasons discussed, we disagree.
10

2. Analysis

Cross-examination to test a witness’s memory “‘should be given a wide 

latitude’ [citations].” (People v. Burton (1961) 55 Cal.2d 328, 343, abrogated on 

another ground in People v. Brown (1994) 8 Cal.4th 746; see also People v. 

Schilling (1987) 188 Cal.App.3d 1021, 1032 [“When cross-examination is 

designed to impeach a witness, ‘the trial judge is expected to allow a wide-ranging 

inquiry as to any factor which could reasonably lead the witness to present less 

than reliable testimony.’ [Citation.] . . . ‘[cross-examination] cannot serve its 

critical function unless trial lawyers are given wide latitude in the scope, subject 

matter and technique of their questioning . . . .’”].) But because the field of 

permissible inquiry in this regard is so broad, “the trial judge must be given broad 

discretion to keep such cross-examination within reasonable bounds . . . .” (People 

v. Burton, supra, at p. 343; accord, People v. Wilson (2008) 44 Cal.4th 758, 794 

[“‘Generally speaking, the Confrontation Clause guarantees an opportunity for 

effective cross-examination, not cross-examination that is effective in whatever 

way, and to whatever extent, the defense might wish.’”]; People v. Von Villas

(1992) 11 Cal.App.4th 175, 229 [“The confrontation clause allows ‘trial judges 

. . . wide latitude . . . to impose reasonable limits on . . . cross-examination based 

on concerns about, among other things, harassment, prejudice, confusion of the 

issues, the witness’[s] safety, or interrogation that is repetitive or only marginally 

relevant.’”]; People v. Schilling, supra, at p. 1032 [“‘Although the right to crossexamine is a significant element in a criminal case, implicit in the constitutional 

right of confrontation [citation], it is within the court’s discretion to conduct the 

trial and limit cross-examination to those matters properly relevant and admissible. 

[Citation.]’”].) The Supreme Court has firmly stated that “‘“not every restriction 

on a defendant’s desired method of cross-examination is a constitutional 
11

violation.”’” (People v. Lewis (2001) 26 Cal.4th 334, 375, quoting People v. Ayala

(2000) 23 Cal. 4th 225, 301.)

Before we determine whether appellant’s rights were violated, we must 

examine whether he preserved this claim for appellate review. (See In re Marriage 

of Broderick (1989) 209 Cal.App.3d 489, 501 [“[A]n appellant waives his right to 

attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling 

or procedure objected to on appeal.”]; accord, People v. Reynolds (2010) 181 

Cal.App.4th 1402, 1408.) After appellant’s counsel, on multiple occasions, had

tested J.’s memory and credibility by confronting her with seemingly inconsistent 

statements found in the interview reports, the court called him to sidebar and 

advised him to use another method in questioning the girl because she appeared to 

be agreeing that the reports were accurate representations of what she had told 

sheriff’s officials without undertaking any real reflection. Appellant contends the 

court’s instructions prevented him from bringing up inconsistencies between her 

interview statements and her testimony concerning the crucial element of 

penetration. We disagree. The record reflects that the court permitted defense

counsel to question J. concerning (a) whether she lied to the deputy, (b) whether 

she denied appellant put anything inside her when being interviewed by the deputy, 

and (c) why she answered the deputy’s question as she did. The court did not call 

counsel to sidebar until he had left the topic of penetration and moved on to 

another area of alleged inconsistency, namely, whether appellant had used a chair 

to facilitate the abuse. At sidebar, when the court asked whether counsel could 

simply call the deputy to testify to what J. had told him, counsel stated “[f]or this 

one I could.” When the court suggested that counsel not continue to ask the girl 

whether she “lied,” but instead employ a different method of questioning, counsel 

said “okay.” Having already confronted J. with respect to what he deemed the 

more significant discrepancies between her testimony and her interview 
12

statements, counsel in no way suggested the court’s restrictions would unduly limit 

his ability to complete the cross-examination. We conclude appellant’s counsel 

acquiesced in the court’s instructions, and that any issue pertaining to those 

instructions is forfeited. 

Moreover, were we to reach the merits, we would find no unconstitutional 

curtailment of counsel’s right to cross-examination. Counsel had already 

highlighted several arguable inconsistencies between the interview reports and J.’s 

testimony, including that she had denied “being penetrated” on the second 

occasion when she was first interviewed by a deputy sheriff. Counsel had been 

permitted to ask whether she “lied” and why she denied having been penetrated. 

Subsequently, counsel called Deputy Whiteman as a defense witness to highlight 

that she had denied being “penetrated with an object.” The court had the right and 

the duty to keep cross-examination within limits, to avoid repetitious testimony 

and to protect a young witness from intimidation and harassment. The court did 

not overstep its bounds.

We find support for our conclusion in People v. Alcala (1992) 4 Cal.4th 742. 

There, the trial court stopped the interrogation after defense counsel repeatedly 

asked a prosecution witness who had identified the defendant at trial whether she 

recalled being unable to identify the defendant in a photo lineup. (Id. at p. 793.) 

On appeal, the defendant contended cross-examination had been improperly 

curtailed. The court found the trial court’s ruling appropriate in order to protect the 

witness from undue harassment in view of the repeated questions permitted on the 

subject. (Id. at p. 794; see Evid. Code, 765, subd. (a).) The court further found no 

possibility of prejudice in view of counsel’s ability to call the police officer present 

at the photo lineup, who testified that the witness had been unable to identify the 

defendant when shown his photograph. (People v. Alcala, supra, at p. 794.) Here, 

appellant’s counsel was permitted to elicit through both J.’s and Deputy 
13

Whiteman’s testimony that J. had denied “be[ing] penetrated” when interviewed 

shortly after the incident. His counsel was further allowed to ask J. why she had 

denied that and whether she had lied to the deputy. The court’s curtailment of 

subsequent questioning concerning other inconsistencies based on the interview 

reports did not obstruct appellant’s ability to put on his defense. 

B. CALCRIM No. 1110

1. Background

Appellant was charged in counts two and three with violation of section 288, 

subdivision (a), which provides: “[A]ny person who willfully and lewdly commits 

any lewd or lascivious act . . . upon or with the body, or any part or member 

thereof, of a child who is under the age of 14 years, with the intent of arousing, 

appealing to, or gratifying the lust, passions, or sexual desires of that person or the 

child, is guilty of a felony and shall be punished by imprisonment in the state

prison for three, six, or eight years.”

The trial court instructed the jury in accordance with CALCRIM No. 1110 

as follows: “The defendant is charged in Counts 2 and 3 with committing a lewd 

or lascivious act on a child [under] the age of 14 years in violation of Penal Code 

section 288(a). [¶] To prove that the defendant is guilty of this crime, the People 

must prove that, one, the defendant willfully touched any part of a child’s body 

either on the bare skin or through the clothing; [¶] two, the defendant committed 

the act with the intent of arousing, appealing to, or gratifying the lust, passions, or 

sexual desires of himself or the child; [¶] and three, the child is under the age of 14 

years at the time of the act. [¶] The touching need not be done in a lewd or sexual 

manner.” 

Appellant contends the sentence “[t]he touching need not be done in a lewd 

or sexual manner” negates an element of the offense and removes that element 
14

from the jury’s obligation to determine every essential element of the charged 

crime. We conclude the instruction should not have included that sentence but 

conclude any error was harmless.

2. Analysis

In People v. Sigala (2011) 191 Cal.App.4th 695, Division Five of this 

District held that the language at issue merely informs the jury that to violate the 

statute, the touching need not be both sexually motivated and “lewd.”6 (Id. at 

p. 700.) “‘Whether a particular touching is “lewd” and criminal under section 288 

cannot be determined separate and apart from the actor’s intent.’ [Citation.] ‘For 

this reason, the courts have long indicated that section 288 prohibits all forms of 

sexually motivated contact with an underage child.’” (Ibid., italics deleted, quoting 

People v. Martinez (1995) 11 Cal.4th 434, 438 & 444.) “Conviction under the 

statute has never depended upon contact with the bare skin or ‘private parts’ of the 

defendant or the victim. [Citations.] . . . [A] lewd or lascivious act can occur 

through the victim’s clothing and can involve ‘any part’ of the victim’s body.” 

(People v. Sigala, supra, at p. 700.) The court concluded that the language at issue 

was an accurate statement of the law and that giving the instruction was not error. 

(Id. at p. 701.) 

In People v. Cuellar (2012) 208 Cal.App.4th 1067, we concurred that the 

sentence at issue “apparently was intended as a transcription of the longestablished rule that touching of a sexual organ is not required for violation of the 

statute. [Citation.]” (Id. at p. 1071.)7 We concluded, however, that its inclusion 

 

6

The instruction at issue in Sigala was CALCRIM No. 1120, defining continuous 

sexual abuse of a minor in violation of section 288.5, but the language at issue was 

identical.

7 Cuellar also involved CALCRIM No. 1120.
15

was potentially confusing. (Ibid.) It was not clear what information the sentence 

was designed to impart that was not already stated in the remainder of the 

instruction. If it was intended to reflect that the statute could be violated even 

though an intimate part of the body was not touched, it would have been simpler 

and clearer to state “the touching need not be made to an intimate part of the 

victim’s body, so long as it is done with the required intent.” (Id. at pp. 1071-

1072.) Nevertheless, we were satisfied that the instruction did not mislead the 

jury, as virtually all the touching at issue in the case was sexual rather than 

incidental in nature, and the evidence of the defendant’s guilt was strong. (Id. at 

p. 1072.) Moreover, the prosecutor had not attempted to capitalize on the 

ambiguity of the language by arguing that the defendant could be found guilty even 

if his touching of the victim had been innocent, but had instead emphasized the 

sexual nature of the touching and the evidence establishing the existence of the 

requisite intent. (Ibid.)

Here, as in Cuellar, there was no evidence of touching that might have been 

inadvertent or innocent. The two section 288 charges were based on J.’s 

description of appellant putting his hand inside her pants and rubbing her vaginal 

area for an extended period of time. The evidence to support the section 288 

violations was overwhelming. J.’s testimony of having been deliberately touched 

by appellant on her vaginal area on two occasions was unwaivering. The 

statements appellant made to Y. in the recorded conversation were clear 

indications of guilt. Accused by Y. of touching J. inappropriately “down there,” he 

repeatedly admitted having touched her, begged Y.’s forgiveness, and expressed 

concern that he would be “taken in” or sent to “the slammer” if others found out 

what he had done. As in Cuellar, the prosecutor did not attempt in closing 

argument to mislead the jury about the nature of the offense or the evidence 

necessary to establish guilt. While the prosecutor repeated the language included 
16

in the instruction, she also explained that the touching must have been done with 

“the intent of arousing, or appealing to, or gratifying lust, passions, or sexual 

desires of himself or [J.],” and emphasized “there is really no reason for choosing 

that part of the body when you are alone with a child to touch other than to get 

aroused, to get off.” On this record, any error in giving the instruction to the jury 

was harmless. 

Appellant suggests the instruction was improper because the statute requires 

an element both Sigala and Cuellar deemed unnecessary -- that the defendant 

lewdly commit a lewd and lascivious act. The argument is foreclosed by the 

Supreme Court’s decision in People v. Martinez, where the court reversed the 

lower court’s holding that section 288 requires both sexual motivation and a lewd 

or lascivious act, and could not be violated by non-lewd touching, even where the 

touching was done with sexual intent. (People v. Martinez, supra, 11 Cal.4th at 

p. 438.) The Supreme Court held the crime occurred although neither victim was 

touched in an inherently lewd manner, and that “section 288 is violated by ‘any 

touching’ of an underage child committed with the intent to sexually arouse either 

the defendant or the child.” (Id. at p. 442.) With respect to the defendant’s 

argument that the statutory language required the additional element, the court 

explained that throughout the statute’s history, courts had consistently held that 

“any touching of an underage child is ‘lewd or lascivious’ within the meaning of 

section 288 where it is committed for the purpose of sexual arousal,” and observed 

that although the statute had been amended multiple times, “[t]he Legislature has 

never expressed dissatisfaction with this approach.” (Id. at pp. 445-446.) In light 

of this history, the court assumed that “the Legislature is aware of the manner in 

which the offense has been judicially constructed and . . . has refrained from 

modifying the substantive terms because it accepts the prevailing view.” (Id. at 
17

p. 446.) This decision is controlling. (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.