Libraries are not safe places. They aren't really any safer than the public park or any other public place. Click the continuation for details of a lewd and lascivious act that took place at a branch library in West Sacramento, even though the 11 year old's uncle and brother were in the library.
Minow question: What is the library responsibility to the public in letting them know about such risks? Should libraries ever post "safe place" placards ? Should libraries engage in educational efforts to show that libraries are not safe? Will this scare patrons away?
People v. Lloyd Russell Dawkins, C045164, COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 2004 Cal. App. Unpub. LEXIS 10120, November 5, 2004, Filed
From the case:
FACTUAL AND PROCEDURAL BACKGROUND
Counts 1 Through 5
Eleven-year-old C.C. was at the public library on Merkley Avenue in West Sacramento with his brother on the afternoon of December 21, 2001. Defendant approached C.C., sat down next to him at a table, and attempted to engage him in conversation. Fearing defendant, C.C. moved to another table. A little later, C.C. went to the shelves in the juvenile book section of the library. Defendant followed him. Once in the library stacks, defendant grabbed and held C.C.'s upper arms with the child facing him. Defendant kneeled down. Defendant let go of C.C.'s arm with one hand and tried to unzip C.C.'s pants. However, defendant was unable to unbuckle C.C.'s belt using just one hand. After defendant tried to undo C.C.'s belt, he attempted to grab the boy's "private part" while still holding his left shoulder. C.C. hit him away with his free hand.
C.C. returned to his table. When he thought defendant had left the library, he went to the restroom. Defendant followed C.C. into the restroom, entered the same stall, and shut the door. C.C. backed up and stood on the toilet seat to try to get away. Defendant again attempted to grab C.C.'s "private part." He lifted the child's shirt and tried to unbuckle his belt. Defendant warned C.C., "'If you tell anybody, I'll find out where you live, and I'll hurt you.'" Defendant abruptly left when C.C.'s uncle and brother entered the restroom looking for him.
Cathryn Lorda, the librarian, noticed that C.C. looked nervous while defendant was near him. When C.C. came out of the restroom, he appeared to be "flushed" and "very upset." Lorda immediately spoke with C.C. and his uncle, and called the police.
At sentencing, in response to the question whether counts 2 and 4 were divisible for purposes of section 654, the prosecutor explained that counts 1 and 2, violations of section 288, subdivisions (a) and (b)(1), were charged as alternative counts directed at defendant's act of grabbing C.C.'s shoulders -- "flat out touching" -- in the library stacks. She said count 4 alleged the separate act of attempting to grab C.C.'s groin area. "So it's the People's contention that you have the grabbing of the shoulders and you have the grabbing of the crotch, those are two separate acts."
Defendant argues that the grabbing of C.C.'s shoulders did not amount to a separate lewd and lascivious touching, but was simply a step toward the goal of touching the child's crotch. Thus, defendant maintains he is entitled to reversal of his convictions in counts 1 and 2. He also takes issue with what he characterizes as the prosecution's change of theory on appeal "that [defendant's] act of grabbing [C.C.'s] shoulders, restraining him, and subsequently attempting to unzip his pants, unquestionably constituted a violation of Penal Code section 288, subdivision (b) as charged in count two. [Defendant's] conduct subsequently (albeit immediately) attempting to grab [C.C.'s] genitals constituted a separate punishable act." (Italics added.)
As to the latter question, whether counts 2 and 4 constituted a single unlawful act was not argued or otherwise presented to the jury. It came up for the first time at sentencing. As we explained, the original theory of the case cited by defendant was simply the prosecution's theory of why section 654 did not apply.
We now return to the first question -- whether there is sufficient evidence that grabbing C.C. by the arms and shoulders in count 2 was a lewd and lascivious act separate from the attempted act for which he was charged and convicted in count 4. When a defendant challenges the sufficiency of the evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431.) We conclude there is sufficient evidence to support both convictions in this case.
"Each individual act that meets the requirements of section 288 can result in a 'new and separate' statutory violation. [Citation.] As some courts already recognize, a more lenient rule of conviction should not apply simply because more than one lewd act occurs on a single occasion." (People v. Scott (1994) 9 Cal.4th 331, 346-347.)
"The 'lewd and lascivious' act need not be inherently sexual in nature nor need it be shown that the offender touched the child's private parts. [Citation.] The crime is committed by any touching of a child with the requisite intent. '"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."'" (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380 (Gilbert).)
"'The criminal intent required to prove a violation of section 288 is "the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires" of perpetrator or victim. The intent with which the act is done is manifested by the circumstances under which the act is committed. [Citation.] Each case involving a lewd act must be decided on its own facts.' [Citations.] Intent may properly be inferred from evidence of other specific acts of a similar nature. (Evid. Code, § 1101, subd. (b).)" (Gilbert, supra, 5 Cal.App.4th at p. 1380.) Relevant circumstances include the nature of the charged act, other acts of lewd conduct charged in the case, the relationship of the parties, the age of the defendant, and "any coercion, bribery, or deceit used to obtain the victim's cooperation or to avoid detection[.]" (People v. Martinez (1995) 11 Cal.4th 434, 445 & fn. 8.)
Here, the circumstances surrounding C.C.'s encounter with defendant in the library stacks support the inference that defendant had the requisite intent when he restrained C.C.'s arms, kneeled in front of him, and tried to unzip his pants. The inference is further supported by evidence of the charged acts involving C.M. in the park, and evidence of uncharged acts involving C.C. in the library restroom. The threats made against both victims by defendant also helped dispel any notion on the part of the jury that defendant's act of grabbing C.C. by the shoulders was innocent.
Alternatively, defendant contends that section 654 bars multiple punishment for counts 2 and 4 because the acts involved a single intent and objective. We agree that the sentence imposed in count 4 must be stayed pursuant to section 654.
Section 654 reads in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
"Section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal. Rptr. 40.) It is the defendant's intent and objective, not the temporal proximity of the acts, that determine whether the transaction is indivisible. (People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal. Rptr. 401.) Whether a defendant had multiple criminal objectives is primarily a factual determination, which will be upheld on appeal if supported by substantial evidence. (People v. Williams (1992) 9 Cal.App.4th 1465, 1473.)
We have already concluded there is sufficient evidence of defendant's unlawful intent to sustain separate convictions in counts 2 and 4. The same evidence leads to the inescapable conclusion that the lewd and lascivious acts performed on C.C. in the library stacks constituted an indivisible course of conduct motivated by one objective -- to touch C.C.'s "private part" for the purpose of sexual arousal. There is no evidence to support the trial court's finding that count 4 constituted a separate act for purposes of section 654. Accordingly, we modify the judgment to stay the consecutive four-year term in count 4. Because this reduces defendant's total sentence by four years, we remand to give the trial court the opportunity to resentence defendant if it elects to do so.
Lewd conduct with a child ( § 288, subd. (a)) is a necessarily included offense of lewd conduct with a child by force or violence ( § 288, subd. (b)(1)). (People v. Ward (1986) 188 Cal. App. 3d 459, 472, 233 Cal. Rptr. 477.) "A defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act." (People v. Sanchez (2001) 24 Cal.4th 983, 987.)
The parties agree that count 1 related to the same conduct as count 2, and count 6 related to the same conduct as count 7. Defendant is therefore correct that his convictions in counts 1 and 7 must be reversed rather than simply stayed.