Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCS191187
McDONALD, Acting P. J.
The petition for rehearing is denied.
It is ordered that the opinion filed herein on April 3, 2008, be modified as follows:
1. On page 2, line 3, at the end of the first full sentence, "(§ 242.)" is added so that the sentence reads:
The jury also found him guilty of battery, a lesser included offense of committing a lewd act upon a child as alleged in counts 2 and 7. (§ 242.)
2. On page 3, lines 12 and 13, the last 2 sentences of the second full paragraph are deleted and replaced with the following:
At trial, the prosecutor and Nathalie had this exchange:
"Q. And before the defendant left, did he say anything to you?
"A. No.
"Q. And how were you feeling?
"A. Scared.
"Q. What were you scared of?
"A. Well, just, I don't know, just — because I saw Sarah crying, and she was really scared. So I was scared that he might come back or something."
3. On page 11, the first and second sentences of the last paragraph are deleted and replaced with the following:
Here, substantial evidence was presented from which a jury, applying an objective standard, reasonably could conclude Allen's touching of the girls, however slight, was offensive, insolent, unwarranted and unjustified. Specifically, as discussed in detail above, Allen, an adult male and stranger to the 10-year-old girls, intruded upon their game. The girls described how his touching in different instances scared them and made them cry, feel uncomfortable; or move backwards.
4. On page 11, following the last paragraph of that page, the following paragraph is added:
Allen claims insufficient evidence of battery existed because the girls consented to his touching, and he relies on a tort case, Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 166, which states, "Absence of consent is an element of battery. [Citation.] 'One who enters into a sport, game, or contest may be taken to consent to physical contacts consistent with the understood rules of the game.' " (Avila, at p. 166.) Avila is inapplicable here because the girls were not participating in an organized sport; Allen was not a recognized participant in their game, and therefore the girls did not assume any responsibility for the consequences of Allen's touching. Rather, as in People v. Cicero (1984) 157 Cal.App.3d 465, Allen's touching of the victims was "accomplished by a deception amounting to fraud in the fact, so that there was no consent by the girls as a matter of law." (Id. at p. 485.)
There is no change in the judgment.