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High Court Rules Molesting Law Covers Intent : Crime: Jurists restore six years to the sentence of Pablo Martinez, who was convicted of attacks on girls in Newhall.

From Associated Press

Any touching of a child under 14 with lewd intent is a felony, the state Supreme Court ruled Thursday in a case involving attacks on two 13-year-old girls in Newhall.

The unanimous decision overturned seven recent state appeals court rulings that said only a touch that was inherently sexual, or was a “lewd or lascivious act” by the nature of the act or the area touched, was covered by the molesting law.

The law, Section 288 of the Penal Code, carries severe penalties, including a potential life sentence for forcible acts against more than one victim.

“We adhere to the longstanding rule that Section 288 is violated by any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child,” said the opinion by Justice Marvin Baxter.

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He said the law was intended “to provide children with special protection from sexual exploitation,” a goal that cannot be met “unless the kinds of sexual misconduct that result in criminal liability are greatly expanded where children are concerned.”

The ruling restored the final six years of the 12-year prison sentence of Pablo Cruz Martinez, convicted of attacks on two 13-year-old girls in June, 1992, in Newhall.

The first victim said she was walking home from junior high when Martinez, a stranger, asked her for the time, then grabbed her around the waist, pressed his body against her and tried to kiss her. She yelled and attracted the attention of a neighbor couple, who ordered Martinez to let her go and then called police.

About an hour later, a second girl’s mother said she saw Martinez with one arm around the girl’s neck or shoulder and his other hand over her mouth as he pushed her toward a park. When the mother ran to help, Martinez let the girl go and punched the woman in the face, the court said. He was then tackled by the girl’s father and uncle, who held him for the police.

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Martinez was convicted of committing forcible lewd acts against both girls, attempted kidnaping of the second girl and battery of her mother. He was sentenced to six years for each the lewd act and given concurrent terms for the other charges.

The 2nd District Court of Appeal overturned the conviction for molesting the second girl because Superior Court Judge Charles Peven had not asked jurors to decide whether Martinez’s touching was, by itself, a “lewd or lascivious act.” The court said his acts toward the first girl were clearly sexual but the record was unclear about whether he had touched the second girl’s breasts, a fact the jury had not been asked to resolve.

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The state Supreme Court reinstated the conviction, saying the jury was properly required to determine only whether Martinez had touched both girls with the intent of sexual gratification.

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“The lewd character of an activity cannot logically be determined separate and apart from the perpetrator’s intent,” Baxter wrote.

“It is common knowledge that children are routinely cuddled, disrobed, stroked, examined and groomed as part of a normal and healthy upbringing. On the other hand, any of these intimate acts may also be undertaken for the purpose of sexual arousal.”

Intent may be determined by the manner of touching, words spoken, actions toward other children, the relationship of the adult and child, and any coercion, bribery or deceit used to gain cooperation or avoid detection, Baxter said.

Martinez’s lawyer, Maureen De Maio, said the court apparently “legislated the words ‘lewd or lascivious act’ right out of the statute.”

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Under the ruling, she said, grabbing a child by the wrist could be punished the same as a forcible sexual act under the molesting law. People have been convicted under that law in recent years for touching a child on the arm, back or hair, she said.

She said Martinez was extremely drunk at the time and had no prior convictions. “I’m not defending his conduct,” De Maio said. “I’m defending the integrity of the statute.”

Matt Ross, spokesman for California Atty. Gen. Dan Lungren, said his office considered the ruling an important clarification of the law in light of the conflicting lower court decisions of the past few years.


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