What is the test for sexual exploitation under section 288 of the California Child Protection Act?

People v. Lopez, supra, 185 Cal.App.4th 1220 is instructive. In that case, the court considered, as an issue of first impression, "whether a touching out of the presence of the defendant can satisfy the touching element within the meaning of section 288." (Lopez, p. 1231.) The court noted that there was "overwhelming evidence that defendant was sexually exploiting" certain children, but that "[t]he question . . . is whether there was sufficient evidence of a touching concurrent with lewd intent, where the girls dressed themselves out of defendant's presence but under defendant's direction." (Id. at p. 1232.) The court concluded, based on the "legislative intent to apply section 288 expansively to any sexually motivated touching," that "section 288 encompasses the defendant's act in the instant case of directing the victims to change into provocative clothing for the sexually motivated purpose of watching the girls search for money in the provocative clothing. The defendant committed the touching acts constructively, through the victims as conduits, for the purpose of sexual arousal. Even though defendant may not have experienced sexual arousal at the moment the victims touched themselves when putting on the provocative clothing, defendant's intent when instigating or causing the touchings was lewd and lascivious within the meaning of section 288, since the touchings were sexually motivated and committed for the purpose of defendant's sexual gratification." The same is true in the present case. Whether or not defendant experienced sexual arousal as the children were actively engaged in the sexual conduct, the evidence supports the finding that his intent when instigating or causing the conduct was lewd and lascivious within the meaning of section 288. The jury could reasonably find that the conduct was sexually motivated and committed for the purpose of defendant's sexual gratification.

2. The jury was properly instructed on the elements of section 288, subdivision (a).