California Penal Code Section 647.6
Penal Code Section 647.6, Subdivision (a)(1) first appeared in 1929 as Penal Code former section 647a, and read as follows:
"Every person who annoys or molests any school child or who loiters about any school or public place at or near which school children attend, is a vagrant, and is punishable by a fine of not exceeding five hundred dollars or by imprisonment in the county jail for not exceeding six months, or by both such fine and imprisonment." (Stats. 1929, ch. 376, 1, p. 697.)
In 1947, Penal Code former section 647a was amended and divided into two subdivisions with subdivision (1) criminalizing conduct that annoys and molests any child, and subdivision (2) criminalizing loitering at schools or public places where school children are present. (Amended by Stats. 1947, ch. 730, 1, p. 1783.)
The statute was further amended a number of times in the late 1940's and 1950's to extend the protected areas in subdivision (2) to include public toilets and public parks. In 1967, subdivision (2) was deleted when the crime of loitering became the subject of Penal Code former section 653g. (Stats. 1967, ch. 154, 1, 2, p. 1241.)
Thereafter, in 1987, Penal Code former section 647a was renumbered to Penal Code section 647.6 and the statute was amended in various respects. (Stats. 1987, ch. 1394, 4, pp. 5089-5090.) The renumbered statute ( 647.6) provided in relevant part (as it does substantially now): "Every person who annoys or molests any child under the age of 18 is guilty of a crime ... ." (Pen. Code, former 647.6, subd. (a)(1).)
Early case law interpretations of this offense focused on describing the statutory purpose of the law, defining the type of proscribed conduct--specifically the definition of the term "annoy or molest."
For example, in People v. Pallares (1952) 112 Cal.App.2d Supp. 895, 901, the defendant was accused of molesting and annoying a four-year-old child. The defendant argued, among other contentions, that the term `annoys or molests' in . . . former section 647a rendered the section impermissibly vague. The Appellate Department of the Fresno County Superior Court rejected that argument, concluding `when these words are used in reference to offenses against children, there is a connotation of abnormal sexual motivation on the part of the offender. . . . The acts forbidden are those motivated by an unnatural or abnormal sexual interest or intent with respect to children.' The court in Pallares opined the statute was not concerned with the subjective concerns of the child. The court further concluded . . . former section 647a was to be construed as establishing an objective test for annoyance or molestation-that is, if the conduct of the defendant was so lewd or obscene that a normal person would unhesitantly be irritated by it, such conduct would annoy or molest within the meaning of the statute.
Numerous Courts of Appeal cited and followed Pallares. (See, e.g., People v. McNair (1955) 130 Cal.App.2d 696, 697-698 279 P.2d 800 finding that defendant, repeatedly exposing himself to a seven-year-old child who was playing outside his apartment window, qualified as conduct which violated Pen. Code, former 647a; People v. Moore (1955) 137 Cal.App.2d 197 290 P.2d 40 upholding a conviction under former 647a where the defendant lifted an eight-year-old girl by the buttocks and rubbed against her body; People v. Carskaddon (1959) 170 Cal.App.2d 45, 47 338 P.2d 201 holding a defendant who merely sat under a tree and walked down a street with a child did not violate former 647a because his behavior would not have irritated a normal person, even if he had the intention to molest the child.)
In 1970, the California Supreme Court in In re Gladys R. (1970) 1 Cal.3d 855, 868 (Gladys R.) affirmed the construction of Penal Code former section 647a in Pallares and further described the primary purpose of Penal Code former section 647a as " ' "protection of children from interference by sexual offenders, and the apprehension, segregation and punishment of the latter." ' " Furthermore in a footnote, the Gladys R. court reaffirmed the principle set forth in Pallares that motivation by an abnormal sexual interest is an element of the offense. (1 Cal.3d at p. 868, fn. 24.) The early cases from Pallares to Gladys R. construing Penal Code former section 647a all concerned situations in which the perpetrators targeted specific children.
Gladys R. concerned the issue of whether a juvenile could be declared a ward under Welfare and Institutions Code section 602 for a violation of Penal Code former section 647a.
The contours of the offense were later explored in People v. Tate (1985) 164 Cal.App.3d 133 210 Cal. Rptr. 117, which concerned whether the defendant, who had molested a seven-year-old daughter of his girlfriend, had to register as a sex offender based on a conviction under Penal Code former section 647a. The Tate court emphasized that Penal Code former section 647a was enacted to protect children and that "children are a class of victims who require paramount protection ... ." (164 Cal.App.3d at p. 139.)
The Thompson court did not accurately describe the language of footnote 24 in Gladys; the footnote did not include the specific "child victim" language. Rather footnote 24 addressed whether motivation by an abnormal sexual interest was an element of the crime without reference to whether that interest was in a particular child or children in general.
Footnote 24 in Gladys provides: "The Attorney General cites People v. Carskaddon, supra, 49 Cal.2d 423, 426, in support of his contention that motivation by an abnormal sexual intent does not constitute an element of the crime in question. We observed in Carskaddon that 'as used in this statute, the words "annoy" and "molest" ordinarily relate to "offenses against children, with a connotation of abnormal sexual motivation on the part of the offender." (People v. Pallares, supra, p. 901.) Ordinarily, the annoyance or molestation which is forbidden is "not concerned with the state of mind of the child" but it is "the objectionable acts of defendant which constitute the offense," and if his conduct is "so lewd or obscene that the normal person would unhesitatingly be irritated by it, such conduct would 'annoy or molest' within the purview of" the statute. ?' () The Attorney General seizes upon the italicized word 'ordinarily,' but Carskaddon clearly did not intend to overrule Pallares and subsequent cases that regard motivation by an abnormal sexual interest or intent as an element of the offense. Carskaddon did not state that such motivation did not constitute an element of the crime and, to the contrary, cited Pallares with apparent approval. In Carskaddon the court found no evidence that the defendant had committed an act coming within the purview of section 647a, and therefore held it unnecessary in that case to consider the matter of motivation." (In re Gladys R., supra, 1 Cal.3d at p. 868, fn. 24.)
The California Supreme Court in People v. Lopez (1998) 19 Cal.4th 282, 289 79 Cal. Rptr. 2d 195, 965 P.2d 713, considered whether a violation of Penal Code section 647.6, subdivision (a)(1) was a lesser included offense of Penal Code section 288. In Lopez, the defendant had been convicted of violating Penal Code section 288 for improperly touching a five year old. The Supreme Court concluded that Penal Code section 647.6, subdivision (a)(1) was not a lesser included offense of a violation of Penal Code section 288. (19 Cal.4th at p 292.)
In the earlier cases there was no question that a specific child was the intended victim; the focus was instead on the nature of the acts, not the identity of the victim. However, in discussing the elements of Penal Code section 647.6, subdivision (a)(1) the majority cited Maurer for the proposition that the defendant be motivated by an unnatural sexual interest in the victim. (19 Cal.4th at p. 289.) Nonetheless, on the next page of the opinion, where the majority compares the elements of Penal Code section 288 to Penal Code section 647.6, subdivision (a)(1), the court observed that Penal Code section 647.6, subdivision (a)(1) required an "act objectively and unhesitantly viewed as irritating or disturbing, prompted by an abnormal sexual interest in children." (19 Cal.4th at p. 290.)