Does section 654 of the California Criminal Code apply to enhancements under section 288 of the Criminal Code?

3 In People v. Gaglione, supra, 26 Cal.App.4th 1291, 32 Cal.Rptr.2d 169, this court agreed that the traditional definition of a lewd act in CALJIC No. 10.41 was erroneous, reasoning that it could be construed to permit conviction of the defendant based on an "innocuous touching." We explained that, "[i]t has long been held that a 'lewd or lascivious act' within the meaning of section 288 is not confined to genital touching ... [n]evertheless the touching must be lewd." (Id. at p. 1298, 32 Cal.Rptr.2d 169.) We did not, in Gaglione, reach the question whether the definition of a lewd act suggested in Wallace, and included in the 1993 revision to CALJIC must be used instead, because the "touching" underlying the conviction, i.e., directing a child to touch the defendant's penis, was unequivocally lewd under either definition, and therefore any error was harmless. (Ibid.)

** See footnote *, ante.

4 The court in People v. Jones (1993) 5 Cal.4th 1142, 1152, 22 Cal.Rptr.2d 753, 857 P.2d 1163, acknowledged that a split of authority exists on the question whether section 654 applies to enhancements, but did not reach the issue.

5 Appellant relies on People v. Ramos, formerly at (1994) 24 Cal.App.4th 1090, 29 Cal.Rptr.2d 706, in his reply brief. That decision was ordered not published several months before appellant's reply brief was filed.