What constitutes a "lewd or lascivious act" for the purposes of section 288.2 of the California Penal Code?

Of course, inadvertent or casual, non-offensive touching, unaccompanied by other direct or circumstantial evidence of an intent to arouse, appeal to or gratify lust, passion, or sexual desire of the defendant or the child, will not qualify as a "lewd or lascivious act" for purposes of section 288. Distinguishing the former touchings from the latter is, however, ordinarily a question of fact for the jury to decide on the basis of the evidence presented in each case. (People v. Hobbs, supra, 109 Cal.App.2d at p. 192, 240 P.2d 411 [each case involving a lustful advance upon a child must be decided by the evidence introduced and is not necessarily controlled by a previous decision].) Trial judges must be especially sensitive and alert to this issue and, in appropriate cases, grant motions for a judgment of acquittal ( 1118.1) at the conclusion of the prosecution's case-in-chief to assure that an innocent touching is not made criminal. Additionally, in close cases, appropriate lesser offense instruction under sections 647.6 (misdemeanor child molesting) ¹³ and 664 (attempts) must be given.