What is the current state of the law on sexual assault under section 288 of the California Penal Code?

In People v. Pitts, supra, 223 Cal.App.3d 606, 273 Cal.Rptr. 757, the court observed that virtually any act could be lewd or lascivious depending upon the intent with which it is done. "In all cases arising under this statute the purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. In People [28 Cal.App.4th 1324] v. Owen [1945] 68 Cal.App.2d 617, 620, 157 P.2d 432 [citation], it is said that 'It is not the accomplishment but the intent of the party that is the basis of the commission of the acts condemned in Penal Code section 288.' If intent of the act, although it may have the outward appearance of innocence, is to arouse, or appeal to, or gratify the lust, the passion or the sexual desire of the perpetrator it stands condemned by the statute, or, if it is intended to arouse feelings of passion or sexual desire in the child, it likewise stands condemned." (Id. 223 Cal.App.3d at p. 887, 273 Cal.Rptr. 757.) (Original emphasis omitted; emphasis added.)

Despite these authorities to the contrary, the Fifth District, in People v. Wallace, supra, 11 Cal.App.4th 568, 14 Cal.Rptr.2d 67 reversed a defendant's conviction of violating Penal Code section 288, subdivision (c) ⁵

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