California Judges Disagree If One Kiss Is A Lewd Sex Act Or Innocent Affection
In the case of Southern California church piano player Cesar Augusto Romero, Orange County law enforcement officers believed the answer is yes.
In fact, prosecutors charged Romero with committing lewd acts on four minor girls in Los Angeles and Orange counties from 2007 to 2009.
A 2011 OC jury wasn't convinced about three of the charges, but found the defendant guilty of a felony for kissing the 12-year-old girl and Superior Court Judge Steven D. Bromberg sentenced Romero, who'd admitted to cops he dreamed of having a dating relationship with the girl when she becomes an adult, to prison.
But late last month, the California Court of Appeal based in Santa Ana determined that the conviction was a miscarriage of justice.
According to the majority of a three-justice panel comprised of William F. Rylaarsdam and David A. Thompson, prosecutors presented insufficient evidence the kiss was committed with lewd or lascivious intent.
"What Romero did was place a brief kiss on the closed mouth of a 12-year-old girl," Rylaarsdam wrote in a 15-page opinion. "There is no evidence suggesting he attempted to open her mouth, or use his tongue, or that the kiss was of any significant duration. Likewise, there is no evidence Romero made any attempt to touch or caress Jane Doe 3 (or himself) in any way when he kissed her, and no evidence he became aroused either during or after the kiss. Put simply, there is no evidence the kiss consisted of anything more than the briefest peck, such as might be exchanged by close friends or family members as an expression of non-sexual affection."
Rylaarsdam and Thompson dismissed the felony lewd conduct conviction, replaced it with a misdemeanor conviction of battery and ordered Bromberg to resentence the defendant, who has been in prison since Nov. 2011, consistent with their ruling.
Justice Raymond J. Ikola, the third member of the appellate panel, issued a dissent opinion.
According to Ikola, the jury's verdict for the felony conviction was sufficient based on "circumstantial evidence" Romero acted to obtain sexual gratification.
"I am not prepared to second-guess the jury's conclusion," he declared. "Another adult who had witnessed Romero's interactions with Jane Doe 3 at church functions described the interactions as romantic, because of how Romero looked at [the girl]. And then Romero kissed the 12-year-old Jane Doe 3 on the mouth--not on the cheek, not on the top of her head, not on her hand--but on her mouth."
A kiss on the mouth is consistent with lewd intent, he concluded.
Ikola also disputed his colleagues' authority to convict Romero of a lesser, uncharged battery count. In his view, the panel should have either upheld the felony conviction or reversed it.
Upshot: Romero, now 31, will be released from custody before finishing his six-year prison sentence inside California's Correctional Training Facility in Soledad.
Let's pray he can focus his affections on adult women in the future.