P. v. Anderson

Filed 10/15/08 P. v. Anderson CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Dale Thomas Anderson was convicted following a jury trial of one count of committing a lewd or lascivious act on a child of 14 or 15 years by a person at least 10 years older than that child (Pen. Code, 288, subd. (c)(1), hereafter  288(c)(1)),[1] and one count of misdemeanor battery ( 242/243, subd. (a)). The sex and battery crimes involved the babysitter of defendants minor children. The court suspended imposition of sentence and placed defendant on probation with the condition that he serve six months in county jail. The court also ordered defendant to register as a sex offender pursuant to section 290.

Defendant contends that as a result of a misstatement of the law by the prosecution in argument concerning the element of intent required for the commission of a lewd act and the courts failure to give a curative instruction, he was deprived of due process. He contends further that he was denied equal protection by being subjected to mandatory registration as a sex offender under section 290.

We conclude that error was committed at the beginning of opening argument when the prosecutor misstated the law concerning the element of intent for the charged crimes. We find, however, that the prosecutorial error does not warrant reversal of the judgment. We further reject defendants constitutional challenge to the requirement that he register as a sex offender. We therefore affirm the judgment.[2]

FACTUAL BACKGROUND[3]

I. Prosecution Evidence

A. Testimony of Katie P.

Katie P. was 17 years old (born in August 1989) and was a senior in high school at the time of the trial in September 2006. She lived about five blocks from defendant and his family. Katies older sister was the babysitter for the Andersons two young children for a while. Katie began babysitting for the Andersons when she was around 12. At that time, their daughter and son were approximately six and three years old, respectively. Katies routine was to arrive at the Andersons house at about 4:00 in the afternoon. Defendants wife would typically talk to Katie when she arrived, but would then be occupied until after 7:00 giving flute lessons to students in an upstairs studio. Defendant usually arrived home from work at around 7:15 to 7:30.

Katies duties included helping the daughter with homework, playing with the son, making the childrens dinner with what defendants wife had planned for the evening, and sometimes bathing the children and getting them ready for bed. She would also watch television with the children for the limited time they were allowed by their parents to do so.

Initially, Katies interactions with defendant were nothing out of the normal. He would come home, and he would talk to [her] for a little bit about school or [her] day, . . . how babysitting was, and . . . normally take [her] home around . . . 8:00. Their relationship changed in 2004. Defendant started getting more . . . touchy-feely, . . . he would . . . put his hand on [her] arm and stuff like that . . . and then it got to be a little too much.

In July 2004 (when Katie was 14), she was in the master bedroom watching television with the two children. They were sitting at the foot of the bed and Katie was sitting up at the head of the bed. After defendant got home and Katie and the children went out to greet him, they resumed watching television. (Defendants wife was upstairs in the studio.) Defendant came into the room, kneeled by the side of the bed and talked to her about the show and about babysitting. He put his hand on Katies left leg and started moving it up her leg on her inner thigh. He played with the rim of her shorts and touched the rim of her underwear. (He did not put his hand under the underwear or touch her groin area during the incident.) He stopped when a commercial came on and the children turned around to play with Katie and him. Defendant put his hand back to Katies shorts. [H]e told [her she] was too young to be doing this, and [she] shouldnt be doing it.[4] The collective amount of time that defendant touched Katie during the incident was about two minutes. He then took Katie by the hand out of the bedroom and into his sons room, looked at her, said, [S]hit, and walked out of the room.

Later, when he took Katie home, defendant said, ^[] I dont mean to make you feel uncomfortable.^[] Katie felt [s]cared and uncomfortable on the ride home. When she got home, she took a shower and immediately went to bed. Katie did not tell anyone what had happened, including her mother, [b]ecause [she] was scared that people wouldnt believe [her].

Afterwards, Katie continued babysitting for the Andersons approximately once a week and on occasional Saturdays. Although defendant would occasionally touch her shoulder or stomach or backside, there was nothing that she felt was inappropriate after the first incident until about three or four months later when she was 15. Katie was sitting at the kitchen table with the two children. (Defendants wife was upstairs in the studio.) Defendant sat at the table as well and used his feet to pull Katies chair closer to him. When he did this, he put his hand on Katies thigh (over her jeans). The children were unable to see this because defendants hands were under the table. Katie tried to push herself away, but defendant then used his feet to pull her chair closer again. Defendants hand got as high as a little bit above [her] mid-thigh. It made her feel uncomfortable and upset. Defendant had his hand on Katies thigh for about five minutes.

A third incident happened in May or June of 2005 (when Katie was still 15). She was upstairs in the play room watching television with the children. Katie was sitting on the couch and the children were lying on their stomachs on the floor. Defendant came into the room and sat next to Katie. He put his hand on her mid-thigh and told [her] that if [she] were . . . older, . . . or if he [were] younger, then he would be trying to pursue [her]. He kept his hand on her thigh for about five minutes. It made her feel uncomfortable and awkward and she wanted to go home.

After Katie went home after the third incident, she told her mother that she did not want to babysit anymore. In response to her mother asking her why she felt that way, Katie told her that [defendant] had sexually abused [her]. Her mother said that if she wanted to receive therapy, she would pay for it.

About four months later, Katie asked her mother if she could go to counseling because of what happened with babysitting. The next day, Katie was called out of class to see the vice principal, who told her that Katies mother had called about an incident involving babysitting and that a police officer wanted to talk to her about it. The officer then interviewed her.

B. Testimony of Dora P.

Dora P. is Katies mother.[5] In late May 2005, Katie came home one night crying, and said that she did not want to babysit for the Andersons anymore because of [defendant]. Dora told Katie that she would not have to babysit there anymore and that if she wanted to talk about it with her or someone else, Dora would make the arrangements. Dora then contacted defendants wife and went over to the Andersons home to talk to her.

In September 2005, while they were in the car, Katie told her mother that she wanted counseling for sexual abuse concerning defendant. Several days later, on September 14, Dora called Kaiser to make an appointment for counseling. After Dora told the advice nurse that her daughter wanted sexual abuse counseling, the nurse initiated a conference call with the San Jose Police Department.

C. Pretext Telephone Call[6]

Detective Robert LaBarbera, a member of the San Jose Police Departments sexual assault unit, conducted a forensic interview of Katie. He arranged for Katie to make a pretext call[7] to defendant that was monitored and recorded by him. A recording of that conversation in the form of a CD was introduced into evidence and played for the jury. The following are relevant excerpts of that conversation:[8]

[Katie:] . . . [W]hat happened has been on my mind a lot lately and I wanted to talk to you about it. [] . . . [] . . . I just wanted to know . . . what youre thinking about it, whats your take on it. [] . . . [] [Defendant:] It was definitely a difficult situation. [] [Katie:] But I want to know . . . how youre feeling about this? [] . . . [] [Defendant:] Well, I dont know. I guess I must have crossed the line with you and I really apologize for that. [] . . . [] [Maybe] I got mixed signals; [maybe] I was just not thinking straight. I dont know. I justI worry about you more than anything. [] [Katie:] What kind of mixed signals do you think you got? [] [Defendant:] . . . I was just worried about you getting the wrong impression and me being too friendly with you or something. I dont know. [] [Katie:] Well, if you were worried about that then why did you do it? . . . [] [Defendant:] Do what? [] [Katie:] You sexually abused me. [] [Defendant:] Andand how did I do that exactly? [] [Katie:] You put your hand up my shorts[. T]hats violating my personal space. [] [Defendant:] Well, I know I touched the rim of your shorts and that was probably wrong for me to do that. [A]nd I definitely apologize for that cause I do think that may have crossed or at least edged the line a little bit and it was wrong for me to do that. . . . [] . . . [] [Defendant:] [I]t was inappropriate and . . . it didnt go any further than that, thank goodness. . . . [] [Katie:] Yeah. But it wasnt just the rim of my shorts, you had your hand under my shorts. [] [Defendant:] I dont remember touching you inappropriately beyond touching the rim of your shorts, your leg, yes, [maybe] on occasion, but nothing beyond that I recall.

[Katie:] Whyd you do it? [] . . . [] [Defendant:] Well . . . thats hard to explain. I mean, youre certainly a very attractive young lady and I guess I was fighting that. I dont know if I have a better explanation. . . . [] [Katie:] So if you did it to me, how do I know theres no one else out there, youve done it to? Theres other attractive women out there. . . . [] [Defendant:] The[re]re a lot of other attractive women out there and frankly this has been an eye-opener for me[. A]nd frankly[,] I love my wife and I dont want to do anything to disrupt my marriage and my life with her. Ive never had any sexual encounter with anyone other than my wife for the entire time Ive been with her, . . . [] [Katie:] I was only 14 when you did it[. B]ut what made you do that if youre happy with your wife? [] [Defendant:] Well, thats actually my problem to deal with . . . . [] [Katie:] Well, youve involved me in that. Its become my problem as well. [] [Defendant:] Okay. Well, how are you doing with that? . . . [O]bviously, youre not comfortable with it. [] [Katie:] No. And my mom knows about it and shes not sure what I should do either. Shes . . . not sure what I should do[,] and I dont know what I should do either. [] [Defendant:] Well, I cant tell you what to do. Im not going to do that. Im very sorry for pushing the edge of that envelope with you. I was not intending to do anything that would hurt you, or me, or Francesca[,] or my kids[,] or your parents[,] or your sister[,] or anybody. [Y]ou know, I think I came too close to you. I got too close to you and . . . there was no craziness associated with it and there was no intention of doing anything that would hurt us further. Im really embarrassed to a certain extent by it all and I just cant begin to apologize[. I]t was wrong and I know that. And . . . I would appreciate it if you can accept that apology and move ahead with your life. You have a life ahead of you. Youre a nice person and a good kid and youve got a lot of things going for you and Im the last one to want to mess that up[. A]nd I have a life[,] too[,] and I dont want to mess that up.

[Katie:] [A]fter you had your hand on my leg and whatever, you took me into Jefferys room[. W]hy? [] [Defendant:] Uh-huh. [] [Katie:] What [were] your intentions? Why did you do that? [] [Defendant:] Well, I think I made it clear there. I wanted you to tell meI was actually, I think, looking for you to tell me that you were not interested. I had to convince myself that you were not interested in me[. A]nd it was hard for me to do, cause we were flirting, I guess, a little bit. [] [Katie:] How? [] [Defendant:] Well, I dont think its necessarily appropriate for us to go into those details right now. I felt that we both flirted with each other. [] [Katie:] How? [] . . . [] [Defendant:] Im not going to go into those details now. [] [Katie:] Why not? [] [Defendant:] Why do you need me to? [] [Katie:] Because I want to know what you took wrong that I did. How do you think I flirted with you? [] [Defendant:] Well, just like any girl flirts with a guy. . . . [Y]our smiles and your looks and your body language[. A]nd [maybe] it was not intentional on your part and I guess thats what I was trying to find out, . . . I got the impression that it was not[. T]hat was why I was asking you and I even asked you specifically to tell me. [] . . . [] [Katie:] [W]hen you took me into Jeffreys room, all you said was, Shit, and then you walked out. [] . . . [] [Defendant:] Thats not what I remember. [] [Katie:] What do you remember? . . . [] [Defendant:] I remember asking you if you were okay and if you would tell me if I was crossing the line, basically. [] [Katie:] And what do you remember me saying? [] [Defendant:] I dont think you said anything specifically. [] [Katie:] And you said you got the impression that I was uninterested. Why did you keepeven after that you would touch my leg and things and you would put your hand on my butt[. W]hy did you keep doing that if you knew that I . . . didnt want any of that? [] [Defendant:] Honestly[,] I guess in a way I was hoping you did. [B]ut I didnt really push it and there were many months and weeks in between and we jumped into a cordial situation. Im sure I made you feel uncomfortable and I apologize for that. [] [Katie:] I was only 14. Do you really think that I would have wanted that? What did you want me to do? [] [Defendant:] What I wanted is irrelevant here. [] [Katie:] What did you want? Did you want me to have sex with you? [] [Defendant:] No. [] [Katie:] Then what did you want? [] [Defendant:] I think thats a little beyond what would be appropriate. [] [Katie:] Then what did you want? [] [Defendant:] I dont know, Katie. [O]bviously, it was not something that could happen. Its not appropriate, not just for the age situation, but for the fact that Im married and all the ramifications that go along with that.

[Katie:] [Y]ou owe me an explanation for what happened. [] [Defendant:] Okay, Im trying to explain to you that . . . if anything[,] the best way to explain it is a fantasy. [] [Katie:] And what was in your fantasy. [] [Defendant:] Well, thats personal. [] [Katie:] You have involved me in it. What did you want from me? [] [Defendant:] Well, what I would want from you or what I would have wanted from you is different than what a fantasy entails. Iso, I guess what I wanted was the ability to have my fantasy. [] [Katie:] And what was your fantasy? [] [Defendant:] Well, again, thats personal[. T]hats between me and myself and my conscience. . . .

After defendant apologized again and continued to express reluctance, and after Katie continued to press for him to explain the fantasy in order to help [her] to move on with things, he asked her if she had had any real boyfriends. Katie responded that she had not but confirmed that she had a brother and, in response to defendants question, agreed with his statement that were all sexual beings in this world. The conversation resumed: [Defendant:] And we grow up and we get married. We fall in love and we have kids . . . and theres even a lot of variety in that. [] [Katie:] Um-hum. [] [Defendant:] Right. And some of it is a little bit crazy, if you ask me. You probably hear stories about how crazy people get. [] [Katie:] Um-hum. [] [Defendant: L]uckily, Im not one of those but, I have a fairly decent appetite for women in general, lets say. I think theyre beautiful creatures and they have beautiful bodies and its more than just the sexual aspect but the intellectual aspect as well and thats stimulating[] [Katie:] Um-hum. [] [Defendant:] to me personally and I think thats stimulating to a lot of men in general. [] [Katie:] Um-hum. [] [Defendant:] And so you stimulated me and youyou made me feel young and vibrant and all that, so my fantasy kind of dealt with how would a young attractive smart girl like you be interested in an old fart like me[. S]o a lot of what my fantasy waswhen I was 14 nobody like you would ever be interested in me. I grew up where I moved so much but I didnt have a lot of girls interested in me and I feltand [maybe] I was convincing myself that I felt that you were interested in me and . . . [maybe] that was part of my fantasy. [] [Katie:] You wanted me to be interested in you? [] [Defendant:] Well, yeah . . . I could say that. [I]ts kind of silly, isnt it? [] [Katie:] Yeah. [] [Defendant:] And thats why I also knew that there was nothing that could ever come from that because I would not pursue it, which is the craziness of it. [A]nd thats whyone of the reasons why I was worried about you cause, heck, if you were interested then that would be even worse because I wouldnt pursue it. [] [Katie:] But you did pursue it. You kept touching me and doing things that you knew were inappropriate. [] [Defendant:] Yeah. AndI guess thatif it crossed over that line for you then I was wrong to do that and I think I was driven by that silly fantasy. [] [Katie:] So you thought that what you were doing wasnt crossing over the line for me? [] [Defendant:] I wasnt sure most of the time and I convinced myself many times that it was so I would try not to. I dont know[. T]hats kind of hard to explain. I mean, have I hurt you? I really need to know. [] [Katie:] Physically, no[. E]motionally, yeah, yes.

After defendant again apologized and said it will be an experience that I will use to make sure that I dont even come close to crossing that line again Katie asked what she should do next and whether she should contact the police. Defendant responded that he hoped that she didnt because many lives would be disrupted but that he could not tell her what she should do. After another apology by defendant, the conversation continued: [Defendant:] . . . Im glad I didnt take it any further. Im very glad cause I am kind of a forceful person and youre a good person and I want you to know that I really didnt ever think anything was going to come of it. I was sure of that and again at the same time I felt attracted to you. [] [Katie:] And so you thought you would violate my personal space? [] [Defendant:] No. Thats not at all what I was trying to do. I was trying to find out if you were interested in me. [] [Katie:] I was 14. [] [Defendant:] Okay, you were and [maybe] thats not an appropriate age for you to be aware of whether youre interested in someone like me or not and [maybe] its inappropriate for me to try and find out. I think thats exactly what Im apologizing for.

In response to Katie asking him why he had needed to find out if she were interested in him if he loved his wife, defendant explained that he had a good relationship with his wife but it was not perfect. Because of the stress and time pressures of having a young family, they did not have much intimate time together. The conversation continued: [Katie:] So, you felt the need to find it elsewhere? [] [Defendant:] In my fantasies is where I find it[. A]nd thats the honest truth. [] [Katie:] And so you attempted to make those fantasies come true? [] [Defendant:] Not exactly. I attempted to make my fantasies more interesting, I guess, but never thought that I could, and would make them real cause I definitely think thats inappropriate. I mean, even if you were 24 or 34. [] [Katie:] Um-hum. [] [Defendant:] Cause I am committed to my wife for life and forsaking all others. I believe that . . . .

Defendant again apologized, indicated that he hoped Katie would decide to not pursue it, told her it was her choice, and asked her to forgive him. After defendant asked Katie what she thought about everything, the conversation resumed: [Katie:]‑‑I dont know what to think cause I cant explain what happened to myself cause I dont know what happened. [] [Defendant:] Well, in a lot of ways[,] nothing happened, but there was a lot of potential for things to have happened. . . . [Y]ou didnt do anything wrong. I think our friendship was a little bit more than it should have been and that was probably my doing. I dont know my fault. [sic] I certainly didnt discourage it and perhaps I should have. . . . Defendant stated that what happened was fairly innocent in nature cause I didnt ever really expect it to go anywhere, nor did I want it to . . . . The call then concluded.

II. Defense Witnesses

A. Testimony of Officer Mark Huiskens

Officer Mark Huiskens of the San Jose Police Department wrote a report concerning defendant based upon an interview of Katie conducted on September 14, 2005, at the high school she attended. He was dispatched as a result of a report by Katies mother of a sexual battery. The interview lasted approximately 45 minutes. The report that he prepared was based upon contemporaneous notes that he had taken; he was confident that he wrote down accurately what Katie had told him.

Katie reported to Officer Huiskens that in approximately July 2004, defendant had rubbed her legs with his hands, and that he had touched her vagina over her underwear. As defendant touched her, he told her that she was too young to be doing this. Katie said that afterwards, defendant led her into a bedroom, said shit, and walked out. He took her home later and told her that he didnt want to make her feel uncomfortable. She told the officer that subsequent to July 2004, defendant had touched her arms, knees, and shoulders. As a result of what Katie reported, Officer Huiskens referred the matter to the Departments sexual assault unit.

B. Testimony of Other Babysitters

Delores Williamson is a family friend of the Andersons who has known them since 1996. She was a babysitter for them for several years while she was a teenager. Defendant was almost like another dad to [her]. Defendant gave her hugs as any really close family friends would do, but he never did or said anything that was inappropriate or made her feel uncomfortable.

Christina Rice babysat for the Andersons once or twice a week for about three years while she was a teenager. Defendant was always nice to her and treated her as a daughter. They gave each other hugs in greeting or when she left for home. Occasionally, defendant patted her on the back and one time touched her leg as a way of saying that she was doing a good job, but she never felt that there was anything inappropriate in how he touched or hugged her. Christina thought that defendant was a great father.

Danielle Williams babysat for the Andersons one day a week for two years while she was in high school. During that time, defendant never touched her in a way that she felt was inappropriate. They hugged each other goodbye when Danielle left for the evening but nothing [in]appropriate at all. Danielle felt that he was a very good father.

C. Testimony of Dale Anderson

Defendant has been employed as a software engineer for approximately 25 years. He was married to his wife, Francesca, in 1994, and they have two children, who were 10 and seven at the time of trial. Because defendant worked during the day and his wife (a professional musician) gave flute lessons in the afternoon, they had hired over the years a number of teenage girls to babysit their children. Katie was the only babysitter who had ever brought to defendants attention that he had made her feel uncomfortable. No other teenage girlsincluding Francescas nieces and music studentshad ever complained that defendant made them feel uncomfortable.

Katie was one of the Andersons babysitters for approximately three years. Over time, Katie and defendant would discuss such things as her schoolwork, her camping trips or church activities, and, on a couple of occasions, her boyfriends. There would occasionally be physical contact between them, such as defendant putting his hand on Katies shoulder or knee; he never perceived that that contact was anything out of the ordinary.

Defendant had a recollection of the first incident about which Katie testified that occurred in mid-2004. His children were in the master bedroom and came out to greet him when he came home from work. They then returned to the bedroom to watch television; both of them and Katie were sitting on the bed. Defendant came in and sat on the floor next to the bed. He touched the rim of Katies shorts. He recalled that it was a playful environment . . . [and t]here was some interaction going on with all four of us, and [that he] perhaps tugg[ed] a little bit playfully at the edge of her shorts. He testified that I dont understand why or what the context was. It was brief. And thats all it was. He did not touch her underwear at any time. Defendant sense[d] a brief recoil [from Katie]. It wasnt a huge thing. He sensed that he may have made her feel uncomfortable by cross[ing] her personal boundary. Defendant did not touch Katies shorts with the intent to arouse himself or her sexually.

He asked Katie to come with her to his sons room. She sat on the bed and he asked her if she were okay and if there . . . was anything she was uncomfortable about. (He did this because he tend[ed] to be a little bit handsy . . . in [his] friendships and relationship[s] with people, and [he] never sensed a problem with Katie about that, but this time she had a slight recoil, so [he] was just making sure everything was okay that [he] didnt do anything to offend her.) She replied that there wasnt anything wrong and they went back into the master bedroom.[9] Katie continued to work for the Andersons for over a year afterwards.

Defendant had no recollection of the second incident that Katie described as occurring at the kitchen table. If he had ever touched or patted her leg, it was never anything [other than] to say anything but thanks for a good job or, you know, attaboy or everything is okay. . . . He denied ever touching Katies thigh with any sexual intent.

Defendant recalled the third incident that Katie described on the last day that she babysat for the Andersons. He remembered putting his hand on her thigh while they were upstairs in the den; they were sitting on the couch watching television with defendants children, who were in front of them on the floor. He had asked her whether the children had behaved themselves and they talked about other things. He believed that she mentioned that there was a boy who was interested in her at school, and she didnt know how to deal with that and she wasnt sure what to do. She hadnt told her mom about it, and she told [him] at that time she wasnt allowed to date . . . . He was trying to be supportive and believed that Katie had fairly low self-esteem and had a tough situation at home with that topic . . . . So he said something to the effect that if he were her age, he would be one of those boys interested in her and patted her leg at around mid-thigh. There was nothing sexual about the way he spoke to her, and there was nothing unusual about how he patted her leg. Katie did not seem to be taken aback by anything that he said or did.

After Katie stopped babysitting for the Andersons, Francesca was upset with defendant because she understood from Katies mother that he was the reason Katie did not want to come back. Defendant called and spoke with Katies father, said that he [understood] there might be a problem with Katie, and [he was] calling to find out what that [was] and he explained that she didnt want to babysit anymore and that [defendant] made her feel uncomfortable. Defendant told the father that he was sorry if he had made Katie feel uncomfortable. He offered to apologize directly to Katie. Thereafter, defendant spent several weeks reflecting and attempting to determine what he might have done to make Katie feel uncomfortable. It was not until several months later when Katie telephoned him that he became aware that the problem Katie had with him involved touching.

Defendant was at work when he received the pretext call from Katie. He was surprised by her call and thought it was an opportunity for him to apologize for making her feel uncomfortable. He wanted not only to apologize to Katie, but also to have her accept that apology and for her to like him. He didnt want to hurt her, and he wanted her to feel good about herself because of his perception that she had low self-esteem. Defendant wanted to give her some explanation that she would be happy with. Placate her in some way so that she would . . . move on . . . .

When defendant used the phrase during the pretext call that he had crossed the line with her, he was referring to crossing the line of a personal boundary . . . . There was, I guess, some other line way out there that has to do with a sexual boundary[he] wasnt even thinking about that. [He] was figuring she was uncomfortable because [he] had made her feel uncomfortable because [he] crossed her personal boundary. Thats what [he] had thought [he] was apologizing for. He used the word fantasy during the call to attempt to explain that he wanted Katie to like him and to receive accolades from her. He said that he suppose[d] there was flirtation between the two of them. He explained that he enjoy[ed] intellectual banter and conversations with people who are intelligent, and [he] didnt have any real girlfriends when [he] was 14, [and] if [he] had been 14, Katie might have represented the type of person [he] would [have been] interested in.

Defendant was questioned extensively on cross-examination about the pretext call. His use of the phrase mixed signals at the beginning of the callbefore the time that she accused defendant of having sexually abused herdid not relate to any flirting; he was simply referring to an apology for having made her feel uncomfortable in some way because he may have been too friendly. His concept of possibly having been too friendly with Katie did not simply involve any touching but also concerned conversations that they had and, in general, the friendship, the bond. Defendant testified that his use of the word fantasy during the call was a very poor choice of words. He had an idea that [they] had a close friendship, and there was no sexual fantasy, . . . [His] fantasy was about being young again, and Katie facilitated that by making him feel more vibrant and alive. Defendant explained that he was interested in her as a person. [He] enjoyed the conversations [they] had and her [i]ntellect, and [he] guess[es [he] was also looking for the attention. That made [him] feel good.

PROCEDURAL BACKGROUND

Defendant was charged by information filed April 21, 2006, with two felony sex offenses, namely the commission of lewd or lascivious acts on a child of 14 or 15 years in violation of section 288(c)(1). It was alleged that the two offenses occurred between July 1, 2004, and July 1, 2005.

On September 29, 2006, the jury convicted defendant on count 1, acquitted defendant on count 2, but found him guilty on the lesser-included offense of misdemeanor battery ( 242/243, subd. (a)). The court thereafter denied defendants motion to reduce the count 1 conviction to a misdemeanor. It suspended imposition of sentence and ordered that defendant be placed on three-year probation on the condition that he serve six months in the county jail. He was also ordered to pay restitution to the victim and to register as a sex offender under section 290. Defendant filed a timely notice of appeal.

DISCUSSION

I. Issues on Appeal

Defendant raises two challenges on appeal:

1. The prosecution argued improperlyover defendants objectionthat proof of intent for present sexual gratification was not required to establish the commission of a lewd act under section 288(c)(1). The prosecution instead argued that it was sufficient if defendant intended by his actions that he achieve sexual gratification at some future time. Because this was a misstatement of the law (defendant argues), it was prejudicial error for the court to refuse defendants request for a curative instruction.

2. The court erred by ordering defendant to register as a sex offender pursuant to section 290. Because (defendant argues) imposition of mandatory registration in this instance violated equal protection in that mandatory registration is not a consequence of sex offense convictions similar to the conviction here, the matter should be remanded to permit the trial court to exercise its discretion in deciding whether to order defendant to register as a sex offender.

II. Claim of Prosecutorial Error

A. Background and Contentions

Early in opening argument, the prosecution introduced the subject of specific intent as an element of the charged offenses. The prosecutor described the crime of a lewd and lascivious act in violation of section 288(c)(1) as nothing more complicated than a guy touching a child for sexual purposes.[10] He tied the question of intent here to defendants reference in the pretext call to fantasy.

The critical prosecution argument on which defendants claim of error is based was as follows: [Y]oure going to read it in your instructions as specific intent. . . . And again what were focusing on is, did [defendant] have a specific mind-set when the touching occurred? Its got to arouse, appeal, gratify . . . [the] lust, passions or sexual desires of either the defendant or the child. It doesnt actually have to arouse them at the time, and thats going to be critical in our case, . . . You cant touch a child with a sexual purpose. You dont actually have to be literally sexually stimulated by it. [] It doesnt have to be a hand on a penis, for example, for there to be an intent. Okay. If its going to be, for example, masturbatorial [sic] material later, if touching is going to somehow bring out a fantasy that will allow you to have some future sexual purpose, you can see he is touching a child for his lust, passions for sexual desire. [] What I want to make clear in talking about this_[,_] though some people think that specific intent to somehow be sexually aroused means it has to be at the time and it doesnt. Okay. Children have a shield.

At that point, defense counsel objected that the argument was a mischaracterization of the law. After an unreported sidebar conference, the court overruled the objection, stating: The objection [will be] overruled, and I will point out, Ladies and Gentlemen, this is argument. Later on I will be giving you specific instructions on what the law is . . . for you to read and consider the instructions and follow them. Counsel are permitted to comment upon their respective interpretations of what they believe the law is under the facts of this case and to urge upon you arguments in that regard, but it is still up to you finally to follow the law as given to you and decide what the law means as I give it to you. . . .

The prosecution resumed argument on the same point. What you will read in the instructions [is] it doesnt have to be arousal at the time. So does he have a purpose, intent, a desire to . . . somehow satisfy the lust, passions or sexual desires? Those can be at different times. [] I am touching a child because I get a stronger connection, makes me feel young and vibrant and that makes me more sexually fulfilled. That is simply enough. A purpose. When that shield is around that child Counsel for defendant again objected and requested a continuing objection. The court responded that it would note [defense counsels] continuing objections to the particular theory of the prosecutions case.

Prior to the court instructing the jury, defendants counselresponding to the prosecutions argument he claimed to have been impropersought a special instruction that the specific intent required for the commission of a lewd or lascivious act was one that had to be present at the time of the touching as opposed to sort of [a] down the road kind of thing. Defense counsel asserted that People v. Martinez (1995) 11 Cal.4th 434 (Martinez) required such an instruction in this instance because of the prosecutions claimed misstatement of the law. After deferring the discussion, the court ultimately ruled that the prosecutions novel argument that one could have a touching where the intent was to get some sort of delayed sexual gratification_[,_] i.e._[,_] it became [a part] of a fantasy that could later be acted out in private was within the definition of the statute. Accordingly, it declined to modify the standard lewd act instruction (CALCRIM No. 1112) ultimately given to the jury.[11]

Defendant contends that the prosecutor misstated the law during his opening argument in describing the specific intent required for a lewd act conviction under section 288(c)(1). The prosecutor argued that an intent for present sexual gratification was not necessary[;] that it was enough if [defendant] intended sexual gratification in the future at a time different from the touching. Defendant asserts that under Martinez, supra, 11 Cal.4th 434, this was plainly an incorrect statement of the law. Despite objection by defense counsel, the court permitted the argument and refused a request by the defense for a curative instruction.

Defendant argues further that the prosecutors misstatement of the law was misconduct. And (defendant asserts) the courts failure to clear up the confusion that would likely be present in the jurys mind concerning the intent element by giving a special instruction explaining that the intent for present sexual gratification was required constituted a violation of defendants due process rights. Because (defendant argues) there is a reasonable likelihood that the jury applied the instruction addressing the intent element of the lewd act charges in a manner contrary to the law, the error was not harmless.

B. Discussion of Claim of Error

1. Applicable law

It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. [Citation.] A prosecutor may vigorously argue his case and is not limited to Chesterfieldian politeness [citation], and he may use appropriate epithets warranted by the evidence. [Citations.] (People v. Wharton (1991) 53 Cal.3d 522, 567-568.) But [a] prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the State. [Citation.] . . . [T]he prosecutor represents a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. [Citation.] Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve. [Citations.] (People v. Espinoza (1992) 3 Cal.4th 806, 820.)

The standards for reviewing a claim of prosecutorial error (oftentimes referred to as prosecutorial misconduct)[12] have been summarized by our high court as follows: A prosecutors rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citations.] (People v. Espinosa, supra, 3 Cal.4th at p. 820.) Generally speaking, the defense must make a timely objection and a request for an admonition to cure any harm in order to preserve an appellate challenge based upon prosecutorial error. (People v. Frye (1998) 18 Cal.4th 894, 969.)

Error through prosecutorial conduct may take a number of forms, including misstating the law (People v. Hill, supra, 17 Cal.4th at pp. 829-830). And the conduct complained of need not be intentional, the court having made it clear that bad faith is no longer a requirement of a prosecutorial misconduct claim. (Id. at pp. 822-823.)

Where the claim involves the assertion that the prosecutor made improper comments before the jury, a determination of whether the error is prejudicial is based upon an inquiry of . . . whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] [Citations.] (People v. Cunningham (2001) 25 Cal.4th 926, 1001; see also People v. Carter (2005) 36 Cal.4th 1114, 1205.) In this inquiry, the comments claimed to be objectionable must be considered in the context of the entire argument (People v. Dennis (1998) 17 Cal.4th 468, 522) to ascertain how the remarks would, or could, have been understood by a reasonable juror. [Citations.] (People v. Benson (1990) 52 Cal.3d 754, 793.) Thus, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.] (People v. Frye, supra, 18 Cal.4th at p. 970.)

2. Whether prosecutorial error occurred

As noted, defendant claims that the prosecutions argument concerning the specific intent element of the charged crimes was a misstatement of the law under Martinez, supra, 11 Cal.4th 434, and therefore constituted misconduct. In that case, the issue the court addressed was whether, if the prosecution proved that the touching of an underage child was done with the requisite sexual intent, the character of the act committed needed to be necessarily lewd in order to sustain a conviction under section 288. (Martinez, supra, at p. 438.) The intermediate appellate court decided the question in the affirmative (ibid.), concluding that instructional error occurred because the jury was not apprised that the touching required under section 288 must be lewd in character. (Martinez, supra, at p. 441.) The Supreme Court disagreed, concluding 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; see also id. at pp. 445, 449.) It noted, however, that the specific kind of touching was relevant to the trier of facts determination, based upon all the circumstances, of whether the defendant performed the act with the requisite sexual intent. (Id. at p. 445.)

In the course of its discussion, the court explained that the gist of the [section 288] offense has always been the defendants intent to sexually exploit a child, not the nature of the offending act. [Citation.] (Martinez, supra, 11 Cal.4th at p. 444.) It noted that throughout the statute's history, the cases have made clear that a touching of the victim is required, and that sexual gratification must be presently intended at the time such touching occurs. (Ibid., italics added.) Elsewhere in the opinion in emphasizing that the specific sexual intent of the actor controlled, the court held that [i]n all cases arising under the statute, the People are required to prove that the defendant touched the child in order to obtain immediate sexual gratification. (Id. at p. 452, italics added.) And in a footnote in which the court rejected the defendants argument that the act committed must be lewd in nature by comparing section 288 to other proscribed sex crimes, it explained that [n]one [of the other statutes cited by the defendant] require[s] both actual physical contact with the victim and a present intent to receive or give immediate sexual gratification. [Citations.] (Martinez, supra, at p. 451, fn. 17, italics added.)

Our high court used similar language in a case that preceded Martinez to convey that the specific intent required to support a lewd act committed on a child in violation of section 288 was one in which the defendant intended to give or receive immediate sexual gratification from that activity. (People v. Mickle (1991) 54 Cal.3d 140, 176, italics added.) And the Supreme Court, citing Martinez, supra, 11 Cal.4th at pp. 444-452, reiterated that the elements of a forcible lewd act on a child consist of the physical touching of an underage child . . . by means of force, violence, duress, or menace, for the present and immediate purpose of sexually arousing or gratifying the toucher or the victim. (People v. Alvarez (2002) 27 Cal.4th 1161, 1171, see also People v. Lopez (1998) 19 Cal.4th 282, 295, conc. opn. of Baxter, J. [evidence, including the defendants own admission, showed that he touched the child victim for the purpose of obtaining immediate sexual gratification].)

Based upon the foregoing, we conclude that the specific intent element of a lewd and lascivious act on a child is one in which the defendant acts with a present intent to receive or give immediate sexual gratification. [Citations.] (Martinez, supra, 11 Cal.4th at p. 451, fn. 17.) In this regard, we reject the suggestion of the prosecution and trial court that the Martinez holding that the intended sexual gratification must be one that is immediate was merely dictum. The Supreme Court in Martinez, as well as in its prior and subsequent decisions noted above, has held clearly that the act by the defendant must be accompanied by the specific intent to immediately sexually gratify the defendant or the victim. Therefore, a violation of section 288 is not established where the evidence shows that there was no intent for present gratification when the touching occurred, but (as the trial court expressed it) merely the intent . . . to get some sort of delayed sexual gratification[,] i.e. [,] . . . a fantasy that could later be acted out in private.

It remains for us to determine whether the prosecution, in fact, misstated the law by arguing, contrary to Martinez, that it was not required to prove that defendant intended to achieve immediate gratification at the time of the touching as long as some future gratification was intended. The Attorney General argues that, reading the prosecutions argument in context and in its entirety, there was no misstatement of the law. He asserts that the prosecutor correctly stated the law that, although intent to sexually arouse the defendant or the victim at the time of the touching is required, actual arousal need not be accomplished. This is, of course, a correct statement of the law. (People v. Bronson (1924) 69 Cal.App. 83, 86.) We, however, disagree with the Attorney Generals view that the prosecution here did not misstate the law.

It is clear that the prosecutor did properly tell the jury that actual sexual arousal was not required in finding defendant guilty of committing a lewd or lascivious act. In addressing the element of intent, he argued correctly that [i]t doesnt actually have to arouse them at the time . . . . You dont actually have to be literally sexually stimulated by it. And the statement that immediately preceded the first defense objectionthough some people think that specific intent to somehow be sexually aroused means it has to be at that time and it doesntwas ambiguous. It could have meant either that actual arousal was not requireda proper argumentor that the intent at the time might be for the act to arouse the actor at some future date. (Cf. People v. Gonzalez (1990) 51 Cal.3d 1179, 1215 [noting that prosecutors remark was ambiguous and could have been construed as proper comment on evidence or as improper attempt to absolve Peoples obligation to overcome reasonable doubt on all elements].) But there is no doubt that the prosecutors argument sandwiched between these two statements was improper under Martinez, supra, 11 Cal.4th 434: If its going to be, for example, masturbatorial [sic] material later, if touching is going to somehow bring out a fantasy that will allow you to have some future sexual purpose, you can see he is touching a child for his lust, passions for sexual desire.

Further, after the court overruled defense counsels initial objection, the prosecutor resumed his argument that included both correct and incorrect statements of the law: What you will read in the instructions [is] it doesnt have to be arousal at the time. So does he have a purpose, intent, a desire to . . . somehow satisfy the lust, passions or sexual desires? Those can be at different times. [] I am touching a child because I get a stronger connection, makes me feel young and vibrant and that makes me more sexually fulfilled. That is simply enough. A purpose. We therefore conclude that the prosecutions opening argument included a misstatement of the law. It remains for us to decide whether this prosecutorial error compels reversal.

3. Whether error was harmless

Although the prosecutor misstated the law during opening argument by suggesting, contra to Martinez, supra, 11 Cal.4th 434, that defendant need not have intended to sexually arouse himself or Katie at the time of the act if he had the intent to obtain delayed gratification at a later time, . . . the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Cunningham, supra, 25 Cal.4th at p. 1001, internal citations omitted.) After reviewing the comments in the context of the entirety of the prosecutors argument (People v. Dennis, supra, 17 Cal.4th at p. 522) to determine how a reasonable juror could or would have understood them (People v. Benson, supra, 52 Cal.3d at p. 793), we find that the prosecutorial error was harmless.

The objectionable comments were very brief. They comprise only a few lines of a 31-page reporters transcript of the prosecutions opening argument. Included in the opening argument was extensive discussion of the evidence from which the jury could reasonably infer that defendant had a sexual purpose at the time he touched Katie. This included Katies testimony that defendant touched her on her bare thigh underneath her shorts, including touching the edge of her underwear. He argued, Obviously[,] someone touching . . . outside of [Katies] vagina along her underwear has a sexual purpose. It has a sexual connotation. The prosecutor argued further that defendant essentially confessed to the crime during the pretext call. He asserted (correctly) that defendant admitted the occurrence of two of the three incidents, and that only the extent and duration of the touchings were disputed. And he argued that Katie had presented credible and consistent testimony that the jury should accept; and, conversely, defendants testimony, including his motive to fabricate and the inconsistencies with his statements during the pretext call, was not worthy of belief.

Moreover, any negative impact of the prosecutions initial comments in opening argument may have been mitigated to some degree by the trial judges admonition during the argumentin response to defendants objectionthat the court would provide the jury with specific instructions on the law for it to consider and follow.[13] And in its instructions given after argument, the courtconsistently with CALCRIM No. 200stated that the jury was required to follow the law, and that if it believed the attorneys comments conflicted with the courts instructions, it should follow the law as the court read it.

Further, any misstatement or ambiguity concerning the law that might have been created by the prosecutors opening argument was countered by the argument of defense counsel. Towards the beginning of his argument, defense counsel indicated that the prosecutor told you that the law was, that the sexual gratification, well that could be sometime later. It doesnt have to be at the time you touched the child. [] . . . [T]he California Supreme Court . . . states the cases have made it clear that a touching of the victim is required and that sexual gratification must be presently intended at the time the touching occurred, and for [the prosecutor] to get up there and say the law is something different, frankly scares me to death.

And in the prosecutors closing argument, he himself clarified that the intent to arouse and the unlawful act needed to coincide. He argued: I want to clear up the legal issue of specific intent. Look, if somehow I was insinuating that there doesnt have to be a connection, or the court will say a union or joint operation of the touching with some sexual intent, thats not what I am trying to say. What I am saying, it does have to be gratified at that moment and thats what the instruction will tell you. He has to have a purpose thats sexual. Okay. But he doesnt actually have to . . . masturbate[] or ejaculate or try to literally have the woman have some sexual pleasure at that moment. It just has to be sexual purpose or desire. Thats all I am suggesting. Okay. [] He is fulfilling his sexual fantasies by touching her. That is his purpose and thats sufficient. These comments could have been reasonably construed as advising the jury to follow the law that in order to find defendant guilty of committing a lewd act on a child under section 288(c)(1), the jury was required to find that at the time of the touching, he had the present intent to arouse himself or Katie.